Amicus Curiae Brief — Farrar v. Hobby

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No. 91-990 JUN 15 1992

In The

Supreme Court of the United States

October Term, 1991

DALE FARRAR and PAT SMITH, Co-Administrators of

the Estate of Joseph D. Farrar, Deceased, Petitioners,

vs.

WILLIAM P. HOBBY, JR., Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF OF THE STATES OF ALABAMA, ALASKA,

ARKANSAS, CALIFORNIA, CONNECTICUT,

DELAWARE, FLORIDA, GEORGIA, HAWAII,

IDAHO, ILLINOIS, INDIANA, IOWA, KANSAS,

KENTUCKY, LOUISIANA, MAINE, MARYLAND,

MASSACHUSETTS, MICHIGAN, MINNESOTA,

MISSISSIPPI, MISSOURI, NEBRASKA, NEVADA,

NEW HAMPSHIRE, NEW JERSEY, NORTH

CAROLINA, NORTH DAKOTA, OHIO,

PENNSYLVANIA, RHODE ISLAND, SOUTH

CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH,

VERMONT, VIRGINIA, WASHINGTON, AND

WYOMING, THE COMMONWEALTH OF PUERTO RICO,

THE TERRITORY OF GUAM, AND THE DISTRICT

OF COLUMBIA, AS AMICI CURIAE IN

SUPPORT OF RESPONDENT

FRANKIE Sue Det Papa* WARREN Price, III**

Attorney General of Nevada Attorney General of Hawaii

Brooke NIELSEN STevEN S. MICHAELS

Assistant Attorney General Ho nan Attorney General

“Counsel of Record for Nevada **Counsel of Record for Hawaii

Capitol Complex 425 Queen Street

Carson City, Nevada 89710 Honolulu, Hawaii 96813

(702) 687-4170 (808) 586-1365

Other Counsel Listed on Inside Front Cover

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Hon. Jimmy Evans

Attorney General

of Alabama

Office of the Attorney

General

State House

11 South Union Street

Montgomery, Alabama

36130

(205) 242-7300

Hon. CuHarwes E. Coie

Attorney General of Alaska

Office of the Attorney

General

State Capitol

P.O. Box 110300

Juneau, Alaska 99811-0300

(907) 465-3600

Hon. Winston Bryant

Attorney General

of Arkansas

Office of the Attorney

General

200 Tower Building

323 Center Street

Little Rock, Arkansas 72201

(501) 682-2007

Hon. Daniet E. LUNGREN

Attorney General

of California

Office of the Attorney

General

Suite 511

1515 K Street

Sacramento, California

95814

(916) 324-5437

Hon. RicHarRD BLUMENTHAL

Attorney General

of Connecticut

Office of the Attorney

General

55 Elm Street

Hartford, Connecticut

06106

(203) 566-2026

Hon. CHartes M. Oserty III

Attorney General

of Delaware

Office of the Attorney

General

8th Floor

820 North French Street

Wilmington, Delaware

19801

(302) 577-3838

Hon. Rosert A. ButreRworTH

Attorney General of Florida

Office of the Attorney

General

Department of

Legal Affairs

The Capitol, PLO1

Tallahassee, Florida

32399-1050

(904) 487-1963

Hon. Micnuaet J. Bowers

Attorney General

of Georgia

Office of the Attorney

General

Department of Law

132 State Judicial Building

Atlanta, Georgia 30334

(404) 656-4585

Hon. Larry EcHoHawk

Attorney General of Idaho

Office of the Attorney

General

State House

Boise, Idaho 83720

(208) 334-2400

Hon. RoLtanp W. Burris

Attorney General

of Illinois

Office of the Attorney

General

State of Illinois Center

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312) 814-3000

Hon. Linuey E. Pearson

Attorney General

of Indiana

Office of the Attorney

General

219 State House

Indianapolis, Indiana

46204

(317) 232-6201

Hon. Bonnie J. CAMPBELL

Attorney General

of lowa

Hoover State Office

Building

Des Moines, lowa 50319

(515) 281-5164

Hon. Rosert T. STEPHAN

Attorney General

of Kansas

Office of the Attorney

General

Judicial Center

Second Floor

Topeka, Kansas 66612

(913) 296-2215

Hon. Curis GORMAN

Attorney General

of Kentucky

Office of the Attorney

General

State Capitol, Room 116

Frankfort, Kentucky 40601

(502) 564-7600

Hon. Ricuarp P. levous

Attorney General

of Louisiana

Office of the Attorney

General

P.O. Box 94005

Baton Rouge, Louisiana

70804-9005

(504) 342-7013

Hon. Micnaet E. CARPENTER

Attorney General of Maine

Office of the Attorney

General

State House

Augusta, Maine 04330

(207) 626-8800

Hon. J. JosepH Curran Jr.

Attorney General

of Maryland

Office of the Attorney

General

200 Saint Paul Place

Baltimore, Maryland 21202

(401) 576-6300

Hon. Scott HARSHBARGER

Attorney General

of Massachusetts

Office of the Attorney

General

One Ashburton Place

Boston, Massachusetts

02108

(617) 727-2200

Hon. Frank J. Keiry

Attorney General

of Michigan

Office of the Attorney

General

Law Building

525 West Ottawa

P.O. Box 30212

Lansing, Michigan 48909

(517) 373-1110

Hon. Husert H.

Humpnrey II!

Attorney General

of Minnesota

Office of the Attorney

General

102 State Capitol

St. Paul, Minnesota 55155

(612) 296-6196

Hon. Mike Moore

Attorney General

of Mississippi

Post Office Box 220

Jackson, Mississippi 39205

(601) 359-3680

Hon. Wituiam L. Wesster

Attorney General

of Missouri

Office of the Attorney

General

Supreme Court Building

101 High Street

P.O. Box 899

Jefferson City, Missouri

65102

(314) 751-3321

Hon. Don STENBERG

Attorney General

of Nebraska

Office of the Attorney

General

State Capitol

P.O. Box 98920

Lincoln, Nebraska 68509

(402) 471-2682

Hon. JoHN P. ARNOLD

Attorney General

of New Hampshire

Office of the Attorney

General

State House Annex

25 Capitol Street, Suite 208

Concord, New Hampshire

03301-6397

(603) 271-3658

Hon. Rosert J. Det Turo

Attorney General

of New Jersey

Office of the Attorney

General

Richard J. Hughes

Justice Complex

25 Market Street, CN080

Trenton, New Jersey 08625

(609) 292-4925

Hon. Lacy H. THORNBURG

Attorney General

of North Carolina

Office of the Attorney

General

Department of Justice

2 East Morgan Street

P.O. Box 629

Raleigh, North Carolina

27602

(919) 733-3377

Hon. Nicuoras J. SpaetH

Attorney General

of North Dakota

Office of the Attorney

General

State Capitol

600 East Boulevard Avenue

Bismark, North Dakota

58505

(701) 224-2210

Hon. Lee FisHer

Attorney General of Ohio

Office of the Attorney

General

State Office Tower

30 East Broad Street

Columbus, Ohio

43266-0410

(614) 466-3376

Hon. Ernest D. Preate Jr.

Attorney General

of Pennsylvania

Office of the Attorney

General

Strawberry Square

16th Floor

Harrisburg, Pennsylvania

17120

(717) 787-3391

Hon. James E. O’Nen

Attorney General

of Rhode Island

Office of the Attorney

General

72 Pine Street

Providence, Rhode Island

02903

(401) 274-4400

Hon. T. Travis Mepiock

Attorney General

of South Carolina

Office of the Attorney

General

Rembert Dennis Office

Building

1000 Assembly Street

Columbia, South Carolina

29211

(803) 734-3970

Hon. Mark BaRNeTT

Attorney General

of South Dakota

Office of the Attorney

General

500 E. Capitol

Pierre, South Dakota

57501-5070

(605) 773-3215

Hon. CHaries W. Burson

Attorney General and

Reporter of Tennessee

450 James Robertson

Parkway

Nashville, Tennessee 37243

(615) 741-3499

Hon. Paut Van Dam

Attorney General of Utah

Office of the Attorney

General

State Capital, Room 236

Salt Lake City, Utah 84114

(801) 538-1326

Hon. Jerrrey L. Amestoy

Attorney General

of Vermont

Office of the Attorney

General

Pavilion Office Building

Montpelier, Vermont 05602

(802) 828-3171

Hon. Mary Sue Terry

Attorney General

of Virginia

Office of the Attorney

General

5th Floor

101 North 8th Street

Richmond, Virginia 23219

(804) 786-2071

Hon. Ken Eikenserry

Attorney General

of Washington

Office of the Attorney

General

Highways — Licenses

Building

P.O. Box 40100

Olympia, Washington

98504-0100

(206) 753-6200

Hon. JoserH B. Mever

Attorney General

of Wyoming

Office of the Attorney

General

123 State Capitol

Cheyenne, Wyoming 82002

(307) 777-7841

Hon. Jorce Perez-Diaz

Attorney General of the

Commonwealth of

Puerto Rico

Office of the Attorney

General

Department of Justice

P.O. Box 192

San Juan, Puerto Rico 00902

(809) 721-7700

Hon. EvizasetH Barrett-

ANDERSON

Attorney General of the

Territory of Guam

Office of the Attorney

General

Department of Law

Suite 701

238 Archbishop

F.C. Flores Street

Agana, Guam 96910

(671) 475-3324

Hon. JoHN PayTon

Corporation Counsel of the

District of Columbia

Office of the

Corporation Counsel

Suite 329

1350 Pennsylvania Avenue,

N.W.

Washington, District

of Columbia 20004

(202) 727-6248

QUESTION PRESENTED

Whether the Fifth Circuit’s judgment, denying all

attorneys fees to Petitioners, who won only a one dollar

nominal damages judgment, should be affirmed either on

the basis that Petitioners were not “prevailing parties”

under 42 U.S.C. § 1988, or, alternatively, on the basis of

the congressionally mandated rule barring fees if “special

circumstances” make “an award unjust”?

TABLE OF CONTENTS

Page

CD ED cv cccccuansescesespetees i

ey Ce I deedancecccctcasecseoscesess ii

TARE GE AUFERO ow ccc cccccccccccccccseces iii

SUMMARY OF ARGUMENT.................00005: 3

REED £0 04 Kovenccncdecccessscdeesacccenacees 5

A. Congress Did Not Intend the Fees Act to

Allow Awards of Attorneys’ Fees in Those

Cases Where Nominal Damages Constituted

the only “Victory” by the Federal Plaintiff... 5

B. This Court’s Decision in Texas State Teachers

Association v. Garland Independent School Dis-

trict, 489 U.S. 782 (1989), Squarely Requires

Affirmance of the Fifth Circuit’s Judgment... 12

C. Alternatively, this Court Should Affirm the

Judgment on the Ground that Circumstances

Render an Award Unjust.................55. 17

CRISES 9 Se Se cencacecccescsccccecseccesenses 20

iii

TABLE OF AUTHORITIES

Page

Cases:

Alyeska Pipeline Service Co v. Wilderness Society, 421

OF RT Te TTT TTT TTT TTT Tee passim

Ashwander v. TVA, 297 U.S. 288 (1936)............... 16

Berry v. Macon County Bd. of Education, 380 F.

Ss Ge GS GE, BOE eis ce ceccccsvccscsceccs 8

Brito v. Zia Company, 478 F.2d 1200 (10th Cir. 1973) ..... 8

Chastang v. Flynn & Emrich Co., 541 F.2d 1040 (4th

Se SEE h46 Oa ddebedinktghbadenhsBasnesdane sods. 19

Chevron U.S.A. v. Natural Resources Defense Council,

ee Ec Bdncnakessscasssascevsncsicce 14

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

0 a oP a ae 19

Estate of Farrar v. Cain, 941 F.2d 1311 (5th Cir. 1991) .... 19

Ex parte Young, 209 U.S. 123 (1908).................. 14

Hammond v. Housing Authority, 328 F. Supp. 586

Se SE SA deiuciwbeerethbinssdeesnedssdcesiers 9

Hensley v. Eckerhart, 461 U.S. 424 (1983)........... 4, 18

Hewitt v. Helms, 482 U.S. 755 (1987).......... 12, 13, 15

Morales v. TWA, 60 U.S.L.W. 4444 (U.S. June 1,

SEE G0 Se86edsncegenesishenenenestayncecseccceces 14

Nadeau v. Helgemoe, 581 F.2d 275 (ist Cir. 1978).. 4, 18, 20

Naprstek v. of Norwich, 433 F.Supp. 1369

(N_D.NY. 197 ices meeied enn espeeseseetennessp see 18

Rn a REN PH Tearing aie: 18, 19

TABLE OF AUTHORITIES - Continued

Page

Ngiraingas v. Sanchez, 495 U.S. 182 (1990)............. 2

Pierson v. Ray, 386 U.S. 547 (1967) ...............4.. 11

Quern v. Jordan, 440 U.S. 332 (1979).............. coe

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............... 11

Siegert v. Gilley, 111 S. Ct. 1789 (1991)................ 4

Skehan v. Bd. of Trustees, 501 F.2d 31 (3d Cir. 1974),

CREE, Gre Sh We Me ccccccccdcccccccccess. 8

Tatum v. Morton, 386 F. Supp. 1308 (D.D.C. 1974),

rev'd, 562 F.2d 1279 (D.C. Cir. 1977).............. 8, 9

Texas State Teachers Association v. Garland Indepen-

dent School District, 489 U.S. 782 (1989)

» occ gpnbnenhs olnbnaligeubesedhnwal 4, 12, 13, 14, 15, 20

Thigpen v. Roberts, 468 U.S. 27 (1984)................ 18

Thonen v. Jenkins, 374 F. Supp. 134 (E.D.N.C. 1974),

a"G, SI7 PAd 3 GOs Cie, BGVE). «2.0. ccccccsccccces 8

United States v. Riverside Bayview Homes, Inc., 474

Se Se Cs a> ncunaduncebbdbybandwltsiscets css 16

Webb v. Dyer County Board of Education, 471 U.S.

de $b banecheseneuheanessEtbesds o pees eos 16

Will v. Michigan Department of State Police, 491 U.S.

Be ahah sd dndebtehadadudesckile ciddss ens cocoons 2

Wood v. Strickland, 420 U.S. 308 (1975) .............. 11

STATUTES AMB—~GONSTITUTIONS:

Civil Rights Attorneys Fees Award Act of 1976, 42

* ae eR bn eksdnwhstnenssscccessep ss passim

Ss Cs Ty Gs Ge Ge owe vccccevecccccaseteens 2

TABLE OF AUTHORITIES — Continued

Md. Ann. Code State Gov’t Art. § 12-402 (1984)......

Mass. Gen. L. ch. 258, § 9 (1992) .......0.. 2.02000 0e.

Lecistative History:

H.R. Rep. No. 94-1588, 94th Cong. 2d Sess. (1976) ..

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

121 Cong. Rec. $16252 (daily ed. Aug. 1, 1975).......

122 Cong. Rec. H12154 (daily ed. Oct. 1, 1976).......

122 Cong. Rec. H12155 (daily ed. Oct. 1, 1976)......

122 Cong. Rec. H12163 (daily ed. Oct. 1, 1976).......

122 Cong. Rec. H12164 (daily ed. Oct. 1, 1976)......

122 Cong. Rec. $16433 (daily ed. Sept. 22, 1976).....

122 Cong. Rec. $16559 (daily ed. Sept. 27, 1976).....

OrHer AUTHORITIES:

P. Nussbaum, “Attorney’s Fees in Public Interest

Litigation,” 48 N.Y.U. L. Rev. 301 (1973)...........

R. Shapiro, “The Enforceability and Proper Imple-

mentation of § 1983 and the Attorney’s Fees

Awards Act in State Courts, 20 Ariz. L. Rev. 743

DU baee dhe veebudsetesdsecusubeden chevessccces

No. 91-990

In The

Supreme Court of the United States

October Term, 1991

DALE FARRAR and PAT SMITH, Co-Administrators of

the Estate of Joseph D. Farrar, Deceased, Petitioners,

vs.

WILLIAM P. HOBBY, JR., Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

. ° +

BRIEF OF THE STATES OF ALABAMA, ALASKA,

ARKANSAS, CALIFORNIA, CONNECTICUT,

DELAWARE, FLORIDA, GEORGIA, HAWAII,

IDAHO, ILLINOIS, INDIANA, IOWA, KANSAS,

KENTUCKY, LOUISIANA, MAINE, MARYLAND,

MASSACHUSETTS, MICHIGAN, MINNESOTA,

MISSISSIPPI, MISSOURI, NEBRASKA, NEVADA,

NEW HAMPSHIRE, NEW JERSEY, NORTH

‘ CAROLINA, NORTH DAKOTA, OHIO,

PENNSYLVANIA, RHODE ISLAND, SOUTH

CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH,

VERMONT, VIRGINIA, WASHINGTON, AND

WYOMING, THE COMMONWEALTH OF PUERTO RICO,

THE TERRITORY OF GUAM, AND THE DISTRICT

OF COLUMBIA, AS AMICI CURIAE IN

SUPPORT OF RESPONDENT

INTEREST OF THE AMICI CURIAE

The States, Commonwealths, and Territories who

appear by this brief amici curiae have an abiding interest

in this case, in which the Fifth Circuit concluded, as a

matter of law, that Petitioners, who won nothing more

than a one dollar nominal damages judgment, should be

awarded no attorneys’ fees under the Civil Rights Attor-

neys’ Fees Award Act of 1976, 42 U.S.C. § 1988.

As government entities, the amici are generally not

liable for damages under the federal laws to which § 1988

applies.' See Ngiraingas v. Sanchez, 495 U.S. 182 (1990);

Will v. Michigan Department of State Police, 491 U.S. 58

(1989); see also Quern v. Jordan, 440 U.S. 332 (1979). Attor-

neys’ fees in nominal damages cases, if appropriate,

would therefore generally be paid by individual state

officers out of their own assets, municipal corporations

which do not share the States’ Eleventh Amendment

immunity, or private insurance. Nonetheless, the amici

States, Commonwealths, and Territories have an impor-

tant interest in the manner in which their municipalities

and officers are treated in damage suits generally, and,

specifically, in those cases where the defendants in such

suits have proven that plaintiff suffered no damage what-

soever, and thus only nominal damages may be awarded.

Because the amici States, Commonwealths, and Territo-

ries strongly believe that the Fifth Circuit was correct in

reversing a District Court judgment that mandated a

* Although there is no legal obligation to do so, some

States, as 4 matter of practice, do pay attorneys’ fees awards

against their State personnel. This practice is intended to

recruit and retain qualified individuals for public positions and

conforms with legislative intent and state policy to protect

state personnel from liability so long as they are acting within

the scope of their public duties and responsibilities and are not

acting with malice or gross negligence. See, ¢.g., Md. Ann. Code

State Gov't Art. § 12-402 (1984); Mass. Gen. L. ch. 258, § 9

(1992). Georgia maintains a self-insurance fund for payment of

judgments and attorney fee awards against officers and

employees. See O.C.G.A. ch. 9, tit. 45 (1990).

former state official to pay, out of his personal account,

attorneys’ fees and costs under 42 U.S.C. § 1988 in excess

of $317,000 for incurring a mere one dollar liability for

purely nominal damages, we urge this Court to affirm the

judgment below. We do so not only because the Fifth

Circuit was correct in concluding that, under this Court's

precedents, Petitioners were not “prevailing parties” in

the District Court action underlying this appeal, but also

because the judgment of the Fifth Circuit is correct as a

matter of law in that the facts here make a fee and cost

award so unjust as to warrant the total denial of any relief

under 42 U.S.C. § 1988.

SUMMARY OF ARGUMENT

1. The Civil Rights Attorneys’ Fees Award Act, 42

U.S.C. § 1988 [“Fees Act”], was not intended, and has not

been viewed by this Court, to authorize awards of sub-

stantial attorneys’ fees where only nominal damages are

granted. Although Congress was concerned, when it

passed the Fees Act, with suits for equitable relief where

no damages would be awarded, not one shred of the

legislative history supports the @onclusion that a nominal

damages award, without more, could give rise to an

entitlement to substantial fees under 42 U.S.C. § 1988.

Congress's intent, in passing the Fees Act, was to restore

the “private attorney general” doctrine, which was

rejected, absent congressional authorization, in Alyeska

Pipeline Service Co. v. Wilderness Society, 421 U.S. 240

(1975). Prior to Alyeska, that doctrine would not permit a

federal plaintiff who had won a mere one dollar judg-

ment to claim fees under a federal court’s equity power.

Because 42 U.S.C. § 1988, as amended by Congress in

1976, was a direct response to Alyeska, this Court should

not interpret that amendment as going further than the

pre-Alyeska “private attorney general” theory would

allow. That theory would not allow fees here, and the

judgment below is correct.

2. Even in the absence of such legislative history,

the Petitioners have not shown, and could not show now,

that they “prevailed” in the manner this Court required

in its unanimous opinion in Texas State Teachers Associa-

tion v. Garland Independent School District, 489 U.S. 782

(1989). Plaintiffs failed to show success “on ‘any signifi-

cant issue in litigation which achieve[d] some of the

benefit the parties sought in bringing suit.’ ” Id. at 791-92

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

1978)). In addition, and most importantly, they could not

show anything beyond “a technical victory” that did not

effect a “material alteration of the legal relationship of the

parties in a manner which Congress sought to promote in

the fee statute.” Id. at 792-93.

3. Even assuming, arguendo, that Petitioners might

be “prevailing parties” for purposes of 42 U.S.C. § 1988,

that is not the end of the inquiry, for this Court may

affirm the judgment on the ground that the circumstances

in this case would make “ ‘ “an award unjust.” ’” Hensley

v. Eckerhart, 461 U.S. 424, 429 (1983) (citations omitted).

The “special circumstances” doctrine is uniquely suited

to this case, for the controversy upon which even Peti-

tioners’ claim to have prevailed is “more contrived than

real,” and thus undeserving of fees. In addition, in this

case, the underlying merits judgment, which triggered

any right to attorneys’ fees in the first place, is apparently

inconsistent with all principles of substantive law, aind, as

well, virtually all precepts of qualified immunity doc-

trine. See, e.g., Siegert v. Gilley, 111 S. Ct. 1789, 1793 (1991).

Contrary to the views of the dissenting judge below, it

ought not be too late, at the fee stage in a nominal

damages judgment, to consider the relative strength of

the parties’ claims and defenses in determining if a fee

should be awarded. Here, that consideration counsels this

Court's affirmance.

ARGUMENT

As this Court has recognized on many occasions, the

1976 amendments to 42 U.S.C. § 1988 were a specific

response to this Court's decision in Alyeska Pipeline Ser-

vice Co. v. Wilderness Society, 421 U.S. 240 (1975). See, e.g.,

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). Alyeska

reaffirmed the “American Rule” with regard to fee-shift-

ing, namely, that “the prevailing litigant is ordinarily not

entitled to collect a reasonable attorneys’ fee from the

loser.” Alyeska, 421 U.S. at 247. As Alyeska held, without

congressional authorization, or a showing of misconduct

by the losing party, there was no power under federal law

to tax attorneys’ fees against a losing defendant, even

under the “private attorney general” theory by which the

lower federal courts were awarding private litigants, in

certain classes of suits against the United States, the

States, their officers, or private parties, their reasonable

attorneys’ fees.

Because, contrary to Petitioners’ understanding,

attorneys’ fees in non-class, nominal damages cases were

not awarded under the “private attorney general” theory

rejected im Alyeska, that Fees Act, which restored

pre-Alyeska law and no more, cannot be viewed as codify-

ing an understanding of the term “prevailing party” that

permits fee awards in such cases. This view of the legisla-

tive history accords with the committee reports and floor

debates, and is reflected in the statutory language of

section 1988 itself. For these reasons alone, the judgment

of the Fifth Circuit is totally correct, and should be

affirmed.

Congress’s enactment of the Fees Act in 1976 was

narrowly targeted to restore the law to the status that had

obtained before this Court entered its decision in Alyeska.

See S. Rep. No. 94-1011, 94th Cong. 2d Sess (1976) at 1

(citing Alyeska); H.R. Rep. No. 94-1588, 94th Cong. 2d

Sess. (1976) at 2 (same). Thus, as Senator Kennedy

observed, the Fees Act “is intended simply to expressly

authorize the courts to continue to make the kinds of

awards of fees that they had been allowing prior to the

Alyeska decision.” 121 Cong. Rec. $16252 (daily ed. Aug.

1, 1975). Representative Drinan, the floor manager in the

House, made this point as well, stating that the Fees Act

“does not overturn law or practice, except the Alyeska

case.” 122 Cong. Rec. H12163 (daily ed. Oct. 1, 1976). See

also 122 Cong. Rec. H12154 (daily ed. Oct. 1, 1976). As

Representative Railsback, another important co-spunsor

of the legislation urged, “what we are really doing is

codifying the practice that was going on prior to the

Alyeska case”); id. at H12161 (same); id. at H12163

(remarks of Reps. Fish and Kastenmeier) (same).

The “private attorney general” doctrine, as elabo-

rated by this Court in Alyeska, was utterly incapable of

counseling a fee award in a pure nominal damages case

such as this. While Justice White’s opinion for the Court

was critical of the private attorney general doctrine as

yielding outcomes that were “extremely difficult to pre-

dict,” the Alyeska majority recognized that that doctrine

was confined to situations “in which the purported bene-

fits [of the success obtained] accrue to the general pub-

lic.” Alyeska, 421 U.S. at 265 n.39. As Justice Marshall

wrote, a private attorney general fee was to be allowed

only if “the important right being protected is one actu-

ally or necessarily shared by the general public or some

class thereof.” 421 U.S. at 240 (Marshall, J., dissenting).

In light of these shared understandings as to the

scope of the private attorney general theory, it is obvious

that Petitioners would not have been eligible to obtain a

fee award under that doctrine prior to Alyeska. Petitioners

did not enjoy any right “actually or necessarily shared by

the general public or some class thereof.” No equitable

relief was entered against any “policy” or standing prac-

tice of Respondent, no out-of-court practices were

changed by reason of the judgment, no class was certified

(and, perforce, no classwide relief was ordered), and,

indeed, no injury (which may in some cases indicate a

risk of harm to others in the future) was found. Under the

private attorney general theory at stake in Alyeska, Peti-

tioners’ claim would have been undeserving of a fee

recovery. In light of the history of section 1988, the fee

claim here is no better today.

Indeed, specific applications »f the private attorney

general doctrine, prior to Alyeska, to cases involving nom-

inal or small damage awards to a small group of plaintiffs

show this compellingly. In 1974, for example, after the

court of appeals for the District of Columbia Circuit had

issued its decision in Alyeska, but before this Court had

reversed, Judge Gasch ruled that the “private attorney

general” doctrine was “more circumspect” than an auto-

matic rule by which “costs” were to be awarded as a

matter of statutory mandate. Accordingly, the “private

attorney general” doctrine would not support an award

of fees even when a group of federal plaintiffs had won

not just nominal damages, but actual (albeit small) com-

pensatory damages of $100 each. Tatum v. Morton, 386

F.Supp. 1308, 1316 (D.D.C. 1974), rev'd on other grounds,

562 F.2d 1279 (D.C. Cir. 1977). indeed, a searching review

of the caselaw extant at the time this Court decided

Alyeska makes very clear that the private attorney general

theory which Congress restored iim the Pees Act was

wholly incapable of supporting am attorneys’ fee award

* Petitioners’ effort, made apparently for the first/time in

this Court, to find cases where fees were awarded in pure

nominal damage judgment actions prior to Alyeska (see Pet. Br.

at 23 & n.10 (citing cases)), is misleading, and ultimately .

unconvincing. In Skehan v. Bd. of Trustees, 501 F.2d 31 (3d Cir.

1974), vacated, 421 U.S. 983 (1975), the Third Circuit held noth-

ment. Thonen v. Jenkins, 374 F . 134 (E.D.NC. 1974), aff'd

on other grounds, 517 F.2d 3 (4th Cir. 1975), involved awards of

compemsatory of $200, while Berry v_Macon County

Bd. of Education, 380 F.Supp. 1244 (M.D. Aia. 1971), granted

reinstatement, “including retirement credits and general raises

At the heart of this conclusion was the notion that the

private attorney general doctrine should not unduly dis-

courage a defendant with meritorious defenses from

defending on the merits. Id. at 1317 (citing and quoting

Alyeska, 495 F.2d 1026, 1032 (D.C. Cir. 1974)). As Judge

Gasch wrote in Tatum:

It should be clear from this discussion that

the private attorne ral exception adopted

by Circuit in Wilderness Society is much too

narrow to fit the case at bar. The prospect of

a attorneys’ fees might have

compe the defendant rict of Columbia

government to make any settlement, including

one which might have been considerably more

substantial than the damages awarded y this

Court, to stay out of court.

386 F.Supp. at 1317. Judge Gasch further observed, as to

suits for nominal or small damages, that while the private

attorney general doctrine would not apply, the obliga-

tions of the private bar would suffice to encourage a

sufficient number of suits lest the bar wish to “lend

credence to the public’s cynical perception of lawyers as

(Continued from previous page)

their employment not been terminated,” as well as a nominal

damages award, id. at 1247-48. Petitioners’ emphasis on Ham-

mond v. Housing Authority, 328 F.Supp. 586, 588 (D. Ore. 1971),

is even more telling. The only reason Plaintiffs did not receive

injunctive relief in that case was that “defendant vol

discontinued the practice” which was the subject of the law-

suit. Id. at 588. This out-of-court victory constitutes

dent “success” which this Court has recognized may be the

subject of a fee award. The suggestion that Hammond involved

# pure nominal damages award, and nothing else, is

unfounded.

comprising a profession motivated solely by self interest

if not greed.” Id. at 1319.°

As the legislative history confirms, fee awards might

be available under the private attorney general doctrine

when a “ ‘broad class intended to be benefitted [by the

substantive law]’ ” was affected, even though the wrong

at issue “cause little injury to any one individual,” 122

Cong. Rec. $16433 (daily ed. Sept. 22, 1976) (remarks of

Senator Allen (quoting Alyeska, 495 F.2d at 1030)). Yet

none of the debates, or committee reports, even suggest

that any fees be awarded in nominal damages cases that

affect a class of two plaintiffs.

Indeed, in adopting, in the 1976 Act, a fee provision

analogous to that in effect under § 4 of the Clayton Act,

Congress was aware that in § 4 cases courts would refuse

to grant fees that “shocked the conscience,” and, as well,

that where only damages were awarded, the judicial con-

science was uniformly “shocked” at fees equal to more

than seventy-eight per cent of a damage award. See 122

3 The scholarly commentary concerning the “private attor-

ney general” theory of fee recovery further supports the con-

clusion that fees could not be awarded under that theory for a

purely nominal damages judgment. One author, writing in

1973, noted that the private attorney general doctrine applied

only to “private parties litigating issues that are important and

beneficial not only to the plaintiff, but also to a wide segment

of the public.” P. Nussbaum, “Attorney’s Fees in Public Interest

Litigation,” 48 N.Y.U. L. Rev. 301, 318 (1973). As shown above,

however, a pure nominal damages case shares none of these

traits. See also R. Shapiro, “The Enforceability and Proper

Implementation of § 1983 and the Attorneys’ Fees Awards Act

in State Courts, 20 Ariz. L. Rev. 743, 754 & n.82 (1978) (Private

attorney general theory was justified on the basis that litigant

was vindicating rights “not only for the individual plaintiff,

but also for all others similarly situated.”) (citing cases).

Cong. Rec. $16559 (daily ed. Sept. 27, 1976). Congress did

recognize that obtaining substantial damages against civil

rights defendants would frequently require greater skill

and time than in the typical tort case, in that “immunity

doctrines and special defenses, available only to public

officials, preclude or severely limit the damage remedy.”

H.R. Rep. No. 94-1588, 94th Cong. 2d Sess. at 9 (1976)

(citing this court’s immunity decisions in Wood v. Strick-

land, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232

(1974); and Pierson v. Ray, 386 U.S. 547 (1967)). But this

recognition does not in any way signify an intent that

defendants who are assessed one dollar in nominal dam-

ages be required to pay attorneys’ fees.

In sum, while Congress was plainly concerned that

fees be awarded upon meritorious claims for significant

relief, “particularly in injunction cases where there is no

monetary benefit to be gained by the plaintiff,” see 122

Cong. Rec. H12155 (daily ed. Oct. 1, 1976) (remarks of

Rep. Seiberling), Congress plainly did not intend that the

Fees Act trigger an obligation to pay fees for insignifi-

cant, technical results. Indeed, to create a statute that did

otherwise, Congress made plain, would be to create “a

food stamp bill for lawyers.” 122 Cong. Rec. H12164

(daily ed. Oct. 1, 1976) (remarks of Rep. Jordan). In enact-

ing the 1976 Fees Act, Congress made clear that the Act

was “not going to work that way.” Id. (remarks of Rep.

Jordan).

In fact, a view of the Fees Act that allows fees to be

granted upon claims for nominal damages, particularly

where large damages were sought, is also at odds with

the plain language of the Act, which allows fees to be

awarded only to “the prevailing party.” It defies both

common sense and the plain language of the Act to term

a suit where only a single claim is litigated, and the

defendant succeeds in limiting liability to one dollar, a

“victory” for the plaintiff. Cf. Hewitt v. Helms, 482 U.S.

755, 762 (1987). Because neither the plain language nor

the legislative history support Petitioners’ reading of the

Fees Act, this Court should affirm the Fifth Circuit's

ruling.

B. This Court’s Decision in Texas State Teachers

Association v. Garland Independent School Dis-

trict, 489 U.S. 782 (1989), Squarely Requires

Affirmance of the Fifth Circuit’s Judgment.

In adjudicating that Petitioners were not “prevailing

parties” under § 1988, the Fifth Circuit did not even need

to plumb the legislative history. This Court’s decision in

Texas State Teachers Association v. Garland Independent

School District, 490 U.S. 782 (1989), completely supports,

indeed mandates the result reached by the Fifth Circuit.

As Garland states clearly:

The floor in this regard is provided by our

decision in Hewitt v. Helms, 482 U.S. 755 (1987).

As we noted there “[rjespect for ordinary lan-

guage requires that a plaintiff receive at least

some relief on the merits of his claim before he

can be said to prevail.” Id., at 760. Thus, 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. Id., at 760-61; Rhodes v.

Stewart, 488 U.S. 1, 3-4 (1988). Beyond this abso-

lute limitation, a technical victory may be so

insignificant and may be so near the situations

addressed in Hewett and Rhodes, as to be insuffi-

cient to support prevailing party status. For

example, in the context of this litigation, the

District Court found that the requirement that

nonschool hour meetings be conducted oniy

with prior approval from the local school princi-

pal was unconstitutionally vague. App. to Pet.

for Cert. 58a. The District Court characterized

this issue as “of minor significance” and noted

that there was “no evidence that the plaintiffs

were ever refused permission to use school

premises during non-school hours.” Id., at 60a,

n.26. If this had been petitioners’ only success in

the litigation, we think it clear that this alone

would not have rendered them “prevailing par-

ties” within the meaning of § 1988. Where the

plaintiff’s success on a legal claim can be charac-

terized as purely technical or de minimis, a dis-

trict court would be justified in concluding that

even the “generous formulation” we adopt

today has not been satisfied.

489 U.S. at 792.

This language, which forms the central focus of

debate in this case, could not more clearly indicate this

Court’s refusal to countenance fee awards in pure nomi-

nal damages cases. At the outset, Petitioners plainly did

not receive “some relief on the merits of [their] claim,”

id., for that claim was for seventeen million dollars. As

this Court ruled in Rhodes, merely being a judgment

winner is not enough to qualify for § 1988 fees. See 488

U.S. at 4. Petitioners did not receive relief on the “money

claim” filed in the District Court, and hence, did not

obtain “the substance of what [they] sought.” Hewitt v.

Helms, 482 U.S. at 761.

But the more important point in cases such as this is

that the Petitioners’ “success” was obviously “purely

technical or de minimis,” as those terms are used in

Garland. A comparison of the District Court’s judgment

nullifying the Garland School District’s rules relating to

nonschool hour meetings shows why. For that judgment

to be correct, the Garland plaintiffs were required to show

not only imminent application of the rule, but the possi-

bility of repetitive prosecutions without any adequate

opportunity to present federal defenses in state courts.

See Morales v. TWA, 60 U.S.L.W. 4444, 4445 (U.S. June 1,

1992) (citing, e.g., Ex parte Young, 209 U.S. 123 (1908)).

Surely, putting a stop to this sort of imminent, threatened,

and ongoing injury is closer to the core of relief which

Congress intended to cover by the Fees Act than is the

Pyrrhic victory of winning a dollar ona claim in which no

injury was inflicted, and, insofar as equitable relief was

abandoned or denied, it is the controlling law of the case

that no injury would be in any likely way inflicted in the

future. Garland is therefore controlling a fortiori. In any

case, at the very least, in a pure nominal damages case,

like the case of the unenforced meetings rule at issue in

Garland, the lack of any injury whatsoever compels the

denial of any fee under 42 U.S.C. § 1988.

Both Petitioners’ and the American Bar Association’s

responses to Garland’s mandate are unconvincing, and,

indeed, ultimately unresponsive to this holding. For their

part, Petitioners simply urge, without any reasoning, that

Garland is inapplicable because their “victory” was nei-

ther “meaningless,” nor “non-compensable.” See Pet. Br.

at 13. Such a response is no response at all. The American

Bar Association likewise never addresses Garland’s lan-

guage concerning “technical, de minimis” success, and

that language’s direct applicability to nominal damages

cases, preferring instead to pick nits with the language of

the Fifth Circuit’s decision. See A.B.A. Brief at 10-17.

However, as this Court has repeatedly held, this Court

reviews “judgments, not opinions,” see, e.g., Chevron

U.S.A. v. Natural Resources Defense Council, 467 U.S. 837,

842 (1983), and the Fifth Circuit’s judgment denying fees

is plainly correct. As this Court observed in Garland, at

some point “the degree of plaintiff’s success” is so small

that it can be characterized as “technical, or de minimis.”

Cf. A.B.A. Brief at 13. In that instance, a Plaintiff is not a

“prevailing party” under § 1988.

Contrary to the arguments of Petitioners and their

amici, a rule, based on the Garland requirement of a

victory that crosses the line from “technical, or de min-

imis” success, does not require the lower courts to assess

a plaintiff’s “true” mental state in bringing suit, and does

not amount to the “central issue” test which was rejected

in Garland. Rather, such a rule recognizes that “[t]he

touchstone of the prevailing party inquiry must be the

material alteration of the legal relationship of the parties

in a manner which Congress sought to promote in the fee

statute.” Garland, 489 U.S. at 792-93 (emphasis added).

Technical “alteration of the legal relationship of the par-

ties” will not do. There is thus no good reason to hold

that Congress thought nominal awards would trigger

§ 1988 fees.4

Indeed, there are many good reasons not to hold that

a nominal award creates a “prevailing party” entitlement

to fees.

* The American Bar Association’s argument that affir-

mance here “would render the availability of a fee award

potentially depending ‘on the timing of a request for fees’ ”

(A.B.A. Br. at 13) presumes that fees pendente lite are awardable

in a damages case bifurcated into liability and damages phases.

An award, in such a case, at the liability phase, would, how-

ever, be in direct conflict with this Court’s ruling in Hewitt.

Thus, the American Bar Association’s argument is wholly with-

out merit.

First among these is the fact that subdividing a single

claim for damages into discrete parts, each of which are

eligible for “prevailing party” status, can only lead to

proliferation of attorneys’ fee disputes. In this regard,

Petitioners’ approach will disserve the purposes of the

Act, as plaintiffs sue for their “reasonable fee” in obtain-

ing a “victory” on a claim for the “first dollar” in dam-

ages, and defendants sue for their “reasonable fee” in

what, in any nominal damages case, will be a good claim

that having to defend against a $17 million judgment was

an onerous burden, imposed only through a frivolous ad

damnum clause in the complaint. This Court has repeat-

edly held, however, that fee litigation is not to over-

shadow merits disputes. See, e.g., Webb v. Dyer County

Board of Education, 471 U.S. 234, 244 n.19 (1985) (noting

that fee litigation is “ ‘one of the least socially productive

types of litigation imaginable’ ”) (citations omitted).

Characterizing a nominal damages award as simply

reflecting a judgment upon a single, non-frivolous claim

upon which plaintiff did not prevail would eliminate the

proliferation of such unproductive litigation over attor-

neys’ fees.

Second, granting fees in such technical, de minimis

cases of relief places enormous pressure on individual

capacity and municipal defendants to settle damage

claims wholly irrespective of the merits of claims or

defenses. The claim that such defendants are being dis-

criminatorily denied their day in court by such draconian

operation of the Fees Act is substantial, and counsels

reading the Act with lenity. Cf. United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 124 (1985) (citing Ash-

wander v. TVA, 297 U.S. 288, 341-56 (1936) (Brandeis, J.,

concurring)). At the least, in the absence of a clear state-

ment from Congress that pure nominal damage awards in

individual capacity cases were to trigger attorneys’ fees,

this Court should uphold the Fifth Circuit's judgment.

Third, an interpretation of the Fees Act that condones

the award of large fees in nominal damages cases can

have a distorting effect on the law itself. To the person on

the street, an award of many thousands of dollars in

attorneys’ fees for a one dollar victory is irrational,

unjust, and nonsensical. Courts are undoubtedly sensitive

to this fact, and it is questionable whether awarding the

sort of irrational fees that were awarded in this case will

yield greater compliance with constitutional precepts.

Instead, it may well produce, in the lower courts if not

this Court, an undue narrowing of substantive constitu-

tional law that will make the issue of damages irrelevant,

to the detriment of civil rights. Surely no one can argue

that this latter, plausible response to Petitioners’ concep-

tion of “prevailing party” would work to benefit plain-

tiffs in the sorts of broad, complex, structural equity cases

where Congress did intend that Fees Act would require

an award.

In short, as the Fifth Circuit found, the judgment of

the District Court holding Petitioners’ were “prevailing

parties” was error, and properly reversed. That reversal

should stand.

C. Alternatively, this Court Should Affirm the

Judgment on the Ground that Circumstances

Render an Award Unjust.

Although the Fifth Circuit did not address it, the law

underlying § 1988 awards has always been that even a

“prevailing party” should be denied a fee when “ ’ “spe-

cial circumstances would render such an award unjust.” ’”

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting S.

Rep. No. 94-1011, at 4 (1976) (quoting in turn Newman v.

Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968))).

Because the law of federal appellate practice is that the

Court “may affirm on any ground that the law and record

permit and that will not expand the relief granted below,”

Thigpen v. Roberts, 468 U.S. 27, 30 (1984), amici submit the

“special circumstances” doctrine as an alternative ground

of affirmance of the Fifth Circuit’s ruling.

The foregoing discussion indicates that, at the very

least, this case is at the margins of Congress’s intent in

enacting § 1988, and that, on a variety of fronts, granting

an award would not serve Congress’s purpose. As the

First Circuit’s ruling in Nadeau v. Helgemoe, 581 F.2d 275

(Ist Cir. 1978), makes clear, the special circumstances

doctrine is particularly suited to those cases where the

controversy is “ ‘more contrived than real,’” even if a

plaintiff could be deemed to have “prevailed.” See id. at

279 n.3 (quoting Naprstek v. City of Norwich, 433 F.Supp.

1369 (N.D.N.Y. 1977)). The issue in this case, of course, is

not whether the Court should abolish the practice of

awarding nominal damages in cases where no injury

whatever is shown, but whether fees should be awarded

to counsel who file suits for damages, and win nothing

more than a mere one dollar judgmert.

Such suits clearly meet the test for controversies that

are “more contrived than real,” for the entry of nominal

relief is purely symbolic, and unconnected to any “real”

injury. It matters not, on this front, that a plaintiff has

“won.” Rather, it is simply unjust to award him or her an

attorneys’ fee.

oo ee ee

Even if the Court were not inclined to foreclose fee

awards in all pure nominal damages award cases, it

should plainly do so in this case so as to clarify the factors

that permit a “special circumstances” denial. Above and

beyond the factors discussed previously, the original

judgment which triggered this fee controversy is in all

likelihood wrong as a matter of law. Indeed, as even the

dissenting judge in the fee appeal below stated, one has

“difficulty understanding the justification for the finding

that Governor Hobby violated plaintiffs’ civil rights.” See

Estate of Farrar v, Cain, 941 F.2d 1311, 1317 (5th Cir. 1991)

(Reavley, J., dissenting).

As Respondent points out, this case arose out of

former Lieutenant Governor Hobby’s asserted role in

requesting an investigation of Artesia Hall, the institution

run by Petitioners’ decedent. These requests, at most,

constituted nothing more than unprivileged libel under

the law of Texas, and could not possibly be the subject of

a federal suit for damages. Indeed, this Court, only last

Term, held that such claims not only fail to establish a

violation of “clearly established” federal law, they fail to

show “a violation of a constitutional right at all.” Siegert

v. Gilley, 111 S. Ct. 1789, 1793 (1991).

This Court’s decisions have, at least implicitly, recog-

nized that a “special circumstances” finding is mandated

as a matter of law in a case like this. In Newman v. Piggie

Park Enterprises, 390 U.S. 400 (1968), the Court strongly

suggested that prevailing in a case that was “borderline”

on the merits ought not counsel fees. Likewise, in Chris-

tiansburg Garment Co. v. EEOC, 434 US. 412, 417 n.10

(1978), the Court cited with approval the Fourth Circuit's

decision in Chastang v. Flynn & Emrich Co., 541 F.2d 1040

(4th Cir. 1976), where the defendant was spared under the

special circumstances doctrine from attorneys’ fee lia-

bility, even though it was found to have been in violation

of the law, as it acted in objective good faith. Here, it is

quite obvious that Respondent not only acted in good

faith, but in fact committed no constitutional breach at

all. See also Garland, 489 U.S. at 791 (citing Nadeau v.

Helgemoe, supra, with approval as to the scope of § 1988).

The amici States, Commonwealths, and Territories,

submit that a federal court, sitting at the attorneys’ fee

stage in a wrongly decided damages case, not only has

the authority, but the duty, under the “special circum-

stances” doctrine, to set the record straight. This author-

ity should be applied here to affirm the judgment.

Particularly where the jury itself has found Petitioners’

case to be worth nothing, circumstances do indeed make

an award unjust.

For these added reasons, the Court should affirm.

CONCLUSION

For the foregoing reasons, the judgment of the Fifth

Circuit denying an award of attorneys fees should be

affirmed.

Respectfully submitted, June 15, 1992.

Frankie Sue Det Para* WarreN Price, III**

Attorney General of Nevada Attorney General

Susan Lentz of Hawaii

Deputy Attorney General Steven S. MICHAELS

“Counsel of Record for Nevada uty Attorney General

Capitol Complex me, nsel of Record for

Carson City, Nevada 89710 Hawaii

(702) 687-4170 425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1365

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