Petition for Writ of Certiorari — Ponte v. Domegan

No. 92-

In the

Supreme Court of the United States.

October Term, 1992

JOSEPH J. PONTE, SUPERINTENDENT,

MASSACHUSETTS CORRECTIONAL INSTITUTE at

WALPOLE, et al.,

Petitioner,

V.

DENNIS J. DOMEGAN,

Respondent.

Petition for a Wnit of Certiorari to the

United States Court of Appeals for

The First Circuit

Scott Harshbarger

Attorney General

of Massachusetts

Jon Laramore*

Steve Berenson

Assistant Attorneys General

Government Bureau

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200

Counsel for Petitioners

*Counsel of Record

¥ —

_—_ on iar

ae 2s

= = «ff 4

7 —~

a Te P ai

: ~ a e

; ro vT

,

- x)

= = -_ *

: ’ | >

: ox | : — -

> : U —_

i] © "= 7 7

- a + 8% ,

: we ’ wv _ _

7 x

= . ei

7 — |

4

a! :

= J

>

)

at me A s- |

os

—

QUESTION PRESENTED

Whether the First Circuit erred in

awarding attorney's fees pursuant to 42

U.S.C. § 1988, to a civil rights

plaintiff whose only recovery was a

nominal damage award of one dollar, in

contrast to the decision of the Fifth

Circuit in Estate of Farrar v. Cain, 941

F.2d 1311 (5th Cir. 1991), cert. granted

sub nom., Farrar v. Hobby, 112 S.Ct.

1159 (1992), the relevant precedents of

this Court, and the congressional

purpose behind the fee statute.

PARTIES TO THE PROCEEDING

The petitioners are Joseph J.

Ponte, Superintendent of the

Massachusetts Correctional Institution

at Walpole ("MCI-Walpole"), Frank

Leppert, Administrator of the Department

Segregation Unit ("DSU") at MCI-Walpole,

and Peter Gallagher, Acting DSU

Administrator during the period relevant

to this case.

The respondent is Dennis J. Domegan.

TABLI. OF CONTENTS

PAGE

QUESTION PRESENTED i

PARTIES TO THE PROCEEDING ii

TABLE OF AUTHORITIES Vv

OPINIONS BELOW 2

JURISDICTION 3

STATUTE INVOLVED 4

STATEMENT OF THE CASE 4

REASONS FOR GRANTING

THE WRIT 9

q. THE CIRCUITS DISAGREE AS

TO WHETHER A PARTY WHO

RECEIVES ONLY A NOMINAL

DAMAGE AWARD OF ONE DOLLAR

IS ENTITLED TO AN AWARD OF

ATTORNEY'S FEES UNDER

42. U.S.C. § 1988. 9

iI. THE QUESTION PRESENTED BY

THIS CASE IS OF GREAT

PUBLIC IMPORTANCE, 17

- iil -

TABLE OF CONTENTS-continued

IIl. THE

ERR

FIRST CIRCUIT

ONEOUSLY APPLIED THIS

COURT'S PRECEDENTS IN

AWA

BAS

RDING ATTORNEY'S FEES

ED ON A NOMINAL DAMAGE

AWARD OF ONE DOLLAR.

A.

CONCLUSION

The One Dollar Damage

Award Did Not Effec: A

Material Alteration In

The Parties’ Relationship

As Defined By This Court

in Garland,

Even If The One Dollar

Damage Award Changed

The Legal Relationship

Between The Parties,

The Change Was Too

Insignificant To Support

Prevailing Party Status.

The Court Of Appeals'

Decision Is Inconsistent

With Congress's Intent In

Enacting 42 U.S.C. § 1988.

22

27

31

36

CASES PAGE

Carey v. Piphus,

435 U.S. 247 (1978) ll

Domegan v. Fair,

859 F.2d 1059 (lst

Cir. 1989) o.. B-38

Estate of Farrar v. Cain,

941 F.2d 1311

(Sth Cir. 1991),

cert. granted sub

nom., Farrar v. Hobby,

112 §.ct. 1159

(1992) passim

Helms v. Hewitt,

655 F.2d 487

(3rd Cir. 1981) 23

Vv ,

461 U.S. 424 (1983)

32, 34

Hewitt v. Helms,

482 U.S. 755 (1987) passim

New York City Unemployed

and Welfare Council v.

Brezenoff, 677 F.2d

232 (2nd Cir. 1982) 29

New York City

Unemployed ang

Welfare Council v.

Brezenoff, 742 F.2d

718 (2nd Cir. 1984)

Ngiraingas v. Sanchez,

495 U.S. 182 (1990)

Northcross v. Memphis

Board of Education,

412 U.S. 427 (1973)

Parham v,. Southwestern Bel]

Telephone Co., 433

F.2d 421 (8th Cir.

1970)

Rhodes _v. Stewart,

488 U.S. 1 (1988)

Riverside v, Rivera,

477 U.S. 561 (1986)

Schever v. Rhodes,

416 U.S. 232

(1974)

Texas State Teachers

v. Garland

Independent Schoo]

District. 489 U.S.

782 (1989)

- Wi -

26-29

30, 31

18-19

35

20

Will v. Michigan

Depart

Police,

(1989)

491 U.S. 58

CONSTITUTIONAL PROVISIONS

Eighth Amendment United

States Constitution

Fourteenth Amendment United

States Constitution

FEDERAL STATUTES

28 U.S.C. § 1254(1)

28 U.S.C. § 1331

28 U.S.C. § 1343

42 U.S.C. § 1983

42 U.S.C. § 1985

42 U.S.C. § 1988

- Wii <-

19

MASSACHUSETTS

Mass. Gen.

§ 11H

Mass. Gen.

§ 111

Mass. Gen.

§ 9)

COURT RULES

Supreme Court

2TATUTES

L. ch. 12,

Rule 16.1]

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

JOSEPH J. PONTE,

SUPERINTENDENT, MASSACHUSETTS

CORRECTIONAL INSTITUTE at WALPOLE,

ET AL.,

Petitioners,

Vv.

DENNIS J. DOMEGAN,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Joseph J. Ponte, et al.,

respectfully petition for a writ of

certiorari to review the judgment of the

United States Court of Appeals for the

First Circuit, entered on August 10,

1992, in this case. The petitioners

further request that the Court hold this

petition, and order summary disposition

on the merits following its pending

decision in Estate of Farrar v. Cain,

$41 F.26 i311 (35th Cit. 1991), Geek,

Granted sub nom., Farrar v. Hobby, 112

S.Ct. 1159 (1992). Supreme Court Rule

16.1.

OPINIONS BELOW

The opinion of the Court of Appeals

(Cyr, J.) on the issue of attorney's

fees is reported at 972 F.2d 401 (lst

Cir. 1992), and is reprinted in the

appendix hereto, at pages la-125a. The

opinion of the concurring justice

(Campbell, J.) is reported at 972 F.2d

at 425, and is reprinted in the appendix

at page 126a. The Memorandum and Order

of the District Court (Zobel, J.) on the

issue of attorney's fees is unreported,

and is reprinted in the appendix at

pages 127a-133a. The earlier opinion of

the Court of Appeals on the issue of

qualified immunity is reported as

Domegan v. Fair, 859 F.2d 1059 (lst Cir.

1989).

JURISDICTION

The judgment of the Court of

Appeals was entered August 10, 1992.

App. 3a. Petitioners invoke the

Jurisdiction of this Court under 28

v.80. 6275063}.

STATUTE INVOLVED

42 U.S.C. § 1988(b). Attorney's fees.

In any action or proceeding to

enforce a provision of sections 1981,

198Jja, 1982, 1983, 1985, and 1986 of

this title, title IX of Public Law

92-318, or title VI of the Civil Rights

Act of 1964, the court, in its

discretion, may allow the prevailing

party, other than the United States, a

reasonable attorney's fee as part of the

costs.

AT T

On or about August 15, 1983, the

respondent Dennis J. Domegan ("the

Respondent" or “Domegan"), filed a pro

se complaint in the District Court for

the District of Massachusetts, based on

Domegan's placement in the Alternate

Feeding Program ("AFP") at MCI-Walpole

for two periods, in May and July of

1983. Appendix ("App.") 5a. The first

placement occurred because Domegan threw

his food tray and human waste against

the wall outside his cell. Id. at n.l.

The second placement also occurred

because Domegan threw his food and tray

outside his cell. Id. Jurisdiction in

the District Court was under 28 U.S.C.

§§ 1331 and 1343.

At the time the action was filed,

prisoners in the AFP received meals of

two cheese sandwiches, with water from

the inmate's cell, served behind the

closed solid steel door of the inmate's

cell. App. 6a. No pre-placement

process was offered to the inmate, and

AFP status was reviewed every fifth

day. Id.

On November 1, 1983, the AFP was

substantially revised to provide a more

varied and nutritious menu. App. 8a n.3.

In 1985, the AFP was revised to provide

for post-placement review after every

meal. Jd.

In March 1984, the District Court

appointed Goodwin, Procter & Hoar as

counsel for the respondent. App. 6a.

The third and final amended complaint

filed by Domegan alleged claims of:

cruel and unusual punishment (Eighth and

Fourteenth Amendments; 42 U.S.C. § 1983;

Mass. Gen. b. Gh. 12; SS ite; 2h473

violation of due process (Fourteenth

Amendment; 42 U.S.C. § 1983; Mass. Gen.

L. ch. 12, §§ 11H, 111) and violation of

the Massachusetts Civil Rights Act

(Mass. Gen. L. ch. 12, § 111). App.

6a-7a. The third amended complaint

sought declaratory and injunctive

relief, compensatory damages totaling

$50,000, and punitive damages totaling

$350,000 ($35,000 from each of ten

defendants). App. 7a-8a.

On cross-motions for summary

judgment, the District Court entered

judgment in favor of Domegan on his

procedural due process claim, but denied

the motions in all other respects.

App. 8a-9a. The defendants’ filed an

interlocutory appeal from the denial of

their motion for summary judgment on

grounds ot qualified immunity. The

First Circuit affirmed the District

Court's refusal to grant summary

judgment on such grounds. Domegan v.

Fair, 859 F.2d 1059 (lst Cir. 1989).

While the interlocutory appeal was

pending, Domegan was released from

custody on October 11l, 1988. App. 8a

n.3. Thus, he did not pursue his claims

for injunctive and declaratory relief.

Id. The case proceeded to trial on the

remaining claims for damages in March

1989. Id. The jury awarded Domegan

$1.00 in “compensatory” damages against

the three petitioners on the procedural

due process claim, and returned verdicts

in favor of all of the defendants on

each of the respondent's remaining

Claims. App. 9a.

Domegan petitioned the District

Court for an award of attorney's fees

and costs in the amount of $88,655.16,

pursuant to 42 U.S.C. § 1988. Id.

Though the District Court determined

that Domegan was entitled to an award of

attorney's fees, it reduced the

requested amount to $41,441.55.

App. 133a. On appeal, the First Circuit

upheld the awarding of fees, but further

reduced the amount to $37,123.85.

App. 125a.

REASONS FOR

GRANTING THE WRIT

F THE CIRCUITS DISAGREE AS TO WHETHER

A PARTY WHO RECEIVES ONLY A NOMINAL

DAMAGE AWARD OF ONE DOLLAR IS

ENTITLED TO AN AWARD OF ATTORNEY'S

FEES UNDER 42 U.S.C. § 1988.

In ruling that attorney's fees are

available under 42 U.S.C. § 1988, to a

party whose only recovery in a civil

rights case is a nominal damage award of

one dollar, the Court of Appeals took

sides in an already-existing split among

the circuits. See App. 32a-35a & n.1ll.

Particularly, in Estate of Farrar v.

Cain, 941 F.2d 1311 (5th Cir. 1991),

cert. granted sub nom. Farrar v. Hobby,

112 S.Ct. 1159 (1992), the Fifth Circuit

held that the plaintiffs in that case,

who received a nominal damage award of

one dollar on their civil rights claims,

were not “prevailing parties” for

purposes of 42 U.S.C. § 1988, and

therefore were not entitled to an award

of attorney's fees.

Farrar is not distinguishable from

the instant case in any significant way

relevant to the issue of attorney's

fees. The Farrars filed suit against

various Texas officials under 42 U.S.C.

§§ 1983 and 1985, seeking both

injunctive relief and monetary damages

for violation of their civil rights.

941 F.2d at 1312. As in the instant

case, the claim for equitable relief was

abandoned during the litigation, and the

case went to the jury on only the

plaintiffs' claims for damages. ld.

The jury found that one of the

defendants “‘committed an act or acts

under color of state law that deprived

Plaintiff Joseph Farrar of a civil

right,’ and that [the defendant's] acts

were not the proximate cause of any

injury." Id. at 1312-13. On appeal,

however, the Fifth Circuit remanded for

entry of a nominal damage award for the

Civil rights violation, relying on Carey

v. Piphus, 435 U.S. 247 (1978).+4/

1’ The First Circuit relied heavily on

Carey in its decision to award

attorney's fees in the instant case.

App. 28a-29a n.10, 65a-67a & n.23,

78a-85a.

The Farrars also filed an

application for attorney's fees under 42

U.S.C. § 1988, which was approved by the

District Court in an amount

approximating $300,000. 941 F.2d at

1313. Applying this Court's decisions

in Texas State Teachers v. Garland

Independent School] District, 489 U.S.

782 (1989), Rhodes v,. Stewart, 488 U.S.

1 (1988), and Hewitt v,. Helms, 482 U.S.

755 (1987), the Fifth Circuit reversed,

holding that the Farrars were not

“prevailing parties” for purposes of 42

U.S.C. § 1988. 941 F.2d at 1313.

At various points in its opinion in

the instant case, the First Circuit

expressly recognized the conflict

between its decision and that of the

Fifth Circuit in Farrar. See App. 43a

(“With respect, and recognizing the

closeness of the question, we would

ascribe a somewhat different intendment

to the principles enunciated in Hewitt

and applied in Rhodes .. ."); App. 80a

("“Respectfully, we are unable to agree

that a bona fide civil rights action

converts to a mere ‘damage suit’ simply

by an adjustment to the ad

damnum .. ."). Additionally, the

concurring justice noted that the

difficult question presented by this

case would presumably be “definitively”

resolved by this Court‘s decision

following its grant of certiorari in

Farrar. App. 126a.

In its opinion, the First Circuit

went to great lengths to reiterate the

Fifth Circuit's characterization of

Farrar as a case solely about damages.

App. 33a n.1ll, 78a-80a. However, the

Court of Appeals did not, and indeed

could not, point to any substantive

distinction between the instant case and

Farrar, beyond such labeling. Like the

instant case, Farrar included an initial

Claim for equitable relief in addition

to the claims for damages, but, as in

the present case, the claim for

equitable relief was abandoned during

the course of the litigation. 941 F.2d

at 1312.

The claims for equitable relief in

this case were properly abandoned when

Domegan was released from custody on

October 11, 1988. App. 8a n.3. Because

Domegan brought the action on behalf of

himself only, not on behalf of

a class, no equitable relief could be

afforded after Domegan's release.

Compare Parham v. Southwestern Bell

Telephone Co., 433 F.2d 421 (8th Cir.

1970). Also, significantly, by the time

this case went to the jury, the AFP had

been changed to the point that it “bore

little resemblance to the original.”

Domegan v. Fair, 859 F.2d at 1062

n.3.*/ Therefore, even if the claims

for equitable relief were not moot, it

is unlikely that Domegan would have been

afforded such relief based on his

Original claims.

2/

Domegan has never asserted that the

changes were occasioned by his suit.

App. 46a n.15.

Thus, as in Farrar, by the time

this case went to the jury, all that was

left to consider were Domegan's claims

for damages for alleged past violations

of his civil rights. Similarly, no

distinction can be drawn based on the

fact that in this case, the District

Court found a constitutional violation,

whereas in Farrar, it is not clear what

Civil right the jury found to have been

violated. 941 F.26 i3i2-13i3. The

Fifth Circuit treated the jury's finding

as a finding of a constitutional

violation for purposes of awarding

attorney's fees. Jd. at 1315.

Thus, the decision in this case

Girectly conflicts with that of the

Fifth Circuit in Farrar. The Court

should grant a writ of certiorari in

+ pmeenees ene ee

this case in order to allow it to

achieve uniformity among the circuits,

consistent with whatever decision this

Court issues in Farrar.

II. THE QUESTION PRESENTED BY THIS CASE

IS OF GREAT PUBLIC IMPORTANCE.

This Court has already noted the

Significance of the issue presented by

this case by granting a writ of

certiorari in Farrar. Moreover, the

Court expressly noted in Garland "the

importance of the definition of the term

‘prevailing party' to the application of

§ 1988 and other federal fee shifting

statutes([.J]" 489 U.S. at 784. The fact

that a split has arisen among the

Circuits in the wake of Garland

regarding whether a plaintiff who

receives a nominal damage award is a

"prevailing party," App. 32a-35a & n.ll,

indicates that further elucidation of

the issue by this Court is needed.

The First Circuit's opinion amply

notes the importance of the availability

of attorney's fees to enforcement of our

country's civil rights laws. App. 68a.

Also of great importance, however, is

the impact of such fee awards on public

entities and public officials. As is

indicated by the circumstances of both

this case and Farrar, the defendants in

cases where attorney's fees are claimed

under 42 U.S.C. § 1988, tend to be

public officials. See also H. R. Rep.

No. 94-1558, p. 7 (1976). Because state

entities generally are not liable for

damages under the federal laws to which

§ 1988 applies, Ngiraingas v. Sanchez,

495 U.S. 182 (1990); Will v. Michigan

Department of State Police, 491 U.S. 58

(1989), potentially large awards of

attorneys fees under § 1988,2’for the

most part, must be paid from the

personal assets or insurance of public

officials. The availability of large

fee awards in cases where plaintiffs

have suffered only nominal damages may

cause timidity in the execution of the

duties of public officials and will make

it more difficult to attract able and

qualified individuals into public

3/ As mentioned above, the fee award in

Farrar was in the range of $300,000.

941 F.2d at 1313.

service. Compare Scheuer v., Rhodes, 416

U.S. 232, 240 (1974).

In order to alleviate the

above-described problem, States such as

Massachusetts have enacted statutes

providing for indemnification of public

officers. See Mass. Gen. L. ch. 258,

§ 9. When such statutes apply, and in

cases involving municipalities, which do

not share States' Eleventh Amendment

immunity, the public fisc will bear the

brunt of awards of attorney's fees in

nominal damage cases. Given the

increasingly tight financial

Circumstances of state and local

governments, the public importance of

the question presented by this case

looms large. For these reasons as well,

the Court should grant a writ of

certiorari in this case.

Bik. THE FIRST CIRCUIT ERRONEOUSLY

APPLIED THIS COURT'S PRECEDENTS

IN AWARDING ATTORNEY'S FEES BASED

ON A NOMINAL DAMAGE AWARD OF ONE

DOLLAR.

The First Circuit properly noted

that under this Court's decision in

Garland, in order to be a “prevailing

party" for purposes of receiving an

award of attorneys fees under § 1988, a

plaintiff must have "(i) obtained relief

on a significant claim in litigation,

(11) effecting a material alteration in

the parties' legal relationship, (1i1:)

that is not merely technical or de

minimus in nature." App. 64a, citing

Garland, 492 U.S. at 791-93 (emphasis

omitted). Petitioners do not dispute

that Domegan obtained some, albeit

nominal, relief, or that his procedural

due process Claim was “significant.”

The Court of Appeals’ wrongly concluded,

however, that the one dollar damage

award in this case effected a material

alteration in the parties' legal

relationship, and that the judgment was

more than a technical or de minimus

victory.

The One Dollar Damage Award

Did Not Effect A Material

Alteration In The Parties’

Relationship As Defined By

This Court In Garland, _

Noting in Garland the requirement

that in order to recover attorney's fees

a plaintiff “must be able to point to a

resolution of the dispute which changes

the legal relationship between itself

and the defendant[,]" this Court cited

its previous opinions in Hewitt, 482

U.S. at 760-61 and Rhodes, 488 U.S. at

3-4. Garland, 489 ' «~. at 792. The

First Circuit's decision in this case,

however, fails to properly follow the

decisions in Hewitt and Rhodes.

In Hewitt, the Third Circuit found

that the plaintiff's due process rights

had been violated by his conviction on

prison disciplinary charges based solely

on hearsay evidence. 482 U.S. at 758,

citing Helms v. Hewitt, 655 F.2d 487,

502 (3rd Cir. 1981) (Helms 1). On

remand, however, the District Court did

not enter judgment in favor of the

plaintiff because it ruled that the

defendants were entitled to qualified

immunity. 482 U.S. at 758. This Court

ruled that in such circumstances, the

plaintiff was not a prevailing party for

purposes of § 1988 attorney's fees with

respect to his due process claim. 482

U.S. at 759-60.

The Court noted that the bare

determination that the plaintiff's

rights had been violated, in the absence

of any redress to the plaintiff, could

not be considered prevailing for

purposes of § 1988. 482 U.S. at 760,

762. “In all civil litigation, the

judicial decree is not the end but the

means. . . . The real value of the

judicial pronouncement .. . is in the

settling of some dispute which affects

the behavior of the defendant towards

the plaintiff.” 482 U.S. at 761

(emphasis in original).

In this case, the District Court's

determination that Domegan's procedural

due process rights were violated,

coupled with only the award of a single

dollar in damages, cannot be said to

have affected the petitioners' behavior

towards Domegan in any significant way,

as a judgment granting declaratory or

injunctive relief, or an award of money

damages of a more than negligible

amount, would have. Therefore, under

this Court's reasoning in Hewitt,

Domegan was not a prevailing party for

purposes of an award of attorney's fees.

The First Circuit's attempt to

distinguish Hewitt was erroneous. See

App. 36a-44a.

The First Circuit also failed to

properly follow this Court's decision in

Rhodes. App. 45a-47a. In Rhodes, a

declaratory judgment entered to the

effect that the defendant had violated

the plaintiffs’ constitutional rights by

refusing them permission to subscribe to

a magazine. 488 U.S. at 2. However,

prior to entry of judgment, one of the

two plaintiffs died, and the other was

released from state custody. Jd. at 3.

Thus, even though judgment entered in

favor of the plaintiffs, the defendants’

behavior towards the plaintiffs would

not be affected in the circumstances of

the case. Jd. at 4. Therefore,

following its reasoning in Hewitt, this

Court held that the plaintiffs would not

be considered prevailing parties for

purposes of § 1988. Jd.

As in Rhodes, Domegan‘s release

from prison prior to the entry of

judgment (as well as the change in

policy) ensured that the judgment in

this case would have no affect on the

Petitioners’ behavior towards him.

Since, as pointed out above, the mere

award of one dollar cannot be considered

to have materially altered the parties’

relationship in this case, the First

Circuit erroneously determined that the

plaintiff was entitled to an award of

attorney's fees.

B. Even If The One Dollar Damage

Award Changed The Legal

Relationship Between The

Parties, The Change Was Too

Insignificant To Support

Prevailing Party Status. —

Even if the “absolute limitation”

discussed above was satisfied in this

case, this Court noted in Garland that

“a technical victory may be so

insignificant, and may be so near the

Situations addressed in Hewitt and

Rhodes, as to be insufficient to support

prevailing party status.” 489 U.S. at

792. Because, as argued above, this

case falls squarely within the

Situations addressed in Hewitt and

Rhodes, it was erroneous for the First

Circuit to award attorney's fees for

this reason as well.

The Court in Garland offered a

number of additional examples of when

technical or ge minimus success on a

legal claim would not warrant prevailing

party status. 489 U.S. at 792. One

such example is the case of New York

City Unemployed and Welfare Council v.

Brezenoff, 742 F.2d 718 (2nd Cir. 1984)

(Brezenoff II). The plaintiff in that

case alleged that four regulations of

the New York City Human Resources

Administration which limited organizing

activities in the City's Income

Maintenance Centers, violated its

members’ constitutional rights. New

York City Unemployed and Welfare Council

Vv. Brezenoff, 677 F.2d 232, 234 (2nd

Cir. 1982) (Brezenoff I). However, only

a minor provision of one of the four

regulations was held to be invalid. ld.

at 235 n.4.

In the passage of Brezenoff I]

cited by this Court, the Second Circuit

affirmed the District Court's denial of

an award of attorney's fees on grounds

that the relief obtained was de minimis

in comparison to the relief sought by

the plaintiff. 742 F.2d at 724 n.4.

Similarly, a comparison of the one

dollar damage award in this case to the

relief sought by Domegan, see supra

at 6-7, indicates that Domegan failed to

cross the de minimus threshoid that

would entitle him to an award of

attorney's fees. The First Circuit's

decision was erroneous for this reason

as well. 2

4/ The Court of Appeals refused to

compare the meager relief granted to

Domegan with the relief he sought in

this case for purposes of determining

whether he was a prevailing party,

taking the position that “degree of

success" may only be considered for

purposes of determining the amount of a

fee award rather than its availability.

App. 62a-64a. However, this Court's

citation to the particular passage in

Brezenoff II] makes clear that the relief

granted must exceed some minimal

threshold in relation to the relief

(footnote continued)

cs The Court Of Appeals' Decision

Is Inconsistent With

Congress's Intent In Enacting

42 U.S.C. § 1988.

This Court stated in Garland,

"{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."

489 U.S. at 782. The Court has

(footnote continued)

sought, in order for a plaintiff to be a

prevailing party. After that de minimus

level is exceeded, then the degree of

success can be considered for purposes

of determining the amount of the fee.

The First Circuit's attempt to explain

away this Court's citation to the

particular passage in Brezenoff II is

wholly unconvincing. App. 57a n.19.

previously described Congress's intent

in passing the fee statute as

replicating the fee provisions of the

1964 Civil Rights Act, and related

legislation. See Hensley v. Eckerhart,

461 U.S. 424, 433 n.7 (1983).

At the time Congress enacted

§ 1988, this Court had issued two

Opinions discussing the fee provisions

of the 1964 Act, Newman v. Piggie Park

Enterprises, Inc., 390 U.S. 400 (1968)

and Northcross v. Memphis Board of

Education, 412 U.S. 427 (1973). Those

Opinions are cited approvingly in the

legislative history, as examples of

proper applications of the award of fees

in civil rights cases. H. R. Rep.

No. 94-1558, p. 6. S. Rep. No. 94-1011,

a

Both Newman and Northcross

addressed situations where the

plaintiffs served as "private attorneys

general,” enforcing statutory provisions

in a manner that would have impact well

beyond the circumstances of the

individual plaintiffs. See Newman, 390

U.S. at 402; Northcross, 412 U.S. at

428.2’ In such circumstances, awards of

attorneys fees served the congressional

purpose of promoting private enforcement

of our nation's civil rights laws.

nH. RR. Rep. mo. 94-1595, p. 1. S. Rep.

94-559, p. 4.

2/ Both Newman and Northcross involved

claims for injunctive relief. H. R.

Rep. 94-1558, p. 9.

However, in cases where neither policies

of general application nor parties

beyond the individual plaintiffs are

likely to be effected, the interests

implicated are more analogous to the

typical private lawsuit where a party

seeks redress for personal injuries

suffered at the hands of another. See

Hen Vv. kerh , 461 U.S. at 444-45

n.4 (Brennan, J., dissenting). In such

Circumstances, where the award of

damages is negligible, the congressional

purpose is not served by a fee award.

The instant case plainly falls

within the latter category. Given that

the relevant policy had long been

Changed, the potential for impact of

Domegan's judgment on others beyond

himself was nil. Rather, Domegan's case

was purely an effort to seek damages for

alleged past injuries suffered at the

hands of the defendants. In such

Circumstances, it is perfectly

appropriate to view success in terms of

the degree of monetary relief obtained.

See Riverside v. Rivera, 477 U.S. 561,

595 (1986) (Rehnquist, J., dissenting)

("this case shares none of the special

aspects of certain civil rights

litigation which . . . would justify an

award of attorney's fees totally

divorced from the amount of damages

awarded by the jury."). The

congressional purpose behind § 1988

would not be advanced by an award of

attorneys fees in the circumstances of

this case.

CONCLUSION

For the reasons stated in this

petition,

this Court should grant the

petition for writ of certiorari to the

United States Court of Appeals for the

First Circuit.

Respectfully submitted,

*Counsel of Record

Dated:

November 6,

SCOTT HARSHBARGER

ATTORNEY GENERAL

COMMONWEALTH OF

MASSACHUSETTS

Jon Laramore*

Steve Berenson

Assistant Attorneys

General

One Ashburton Pl.

Boston, MA 02108

(617) 727-2200

Counsel for

Petitioners

1992

36 -