# Amicus Curiae Brief — Farrar v. Hobby > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0227%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1992 - **Citation:** 506 U.S. 103 ## Text — a a (10) FILED } No. 91-990 JUN 15 1992 oa 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 S 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 i 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”? ii 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 iv 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 v 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 s 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 1 2 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). 3 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 4 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). 5 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 6 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 eT 7 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 9 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. 10 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). 11 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 12 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 13 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 14 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, 15 842 (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. 16 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., 17 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 18 “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 19 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 20 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 Other Counsel Listed on Inside Front Cover --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0227%3A11. Public record. Not legal advice.