Appendix — Ponte v. Domegan

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Supreme Court, U.S,

92-856 FILED

NOV 6 1992

DFFICE OF THE CLERK

No. 92-

IN THE .

SUPREME COURT OF THE UNITED STATES

October Term, 1992

JOSEPH J. PONTE,

SUPERINTENDENT, MASSACHUSETTS

CORRECTIONAL INSTITUTE at WALPOLE,

Er AL.,

Petitioners,

Vv.

DENNIS J. DOMEGAN,

Respondent,

Appendix To Petition for

a Writ of Certiorari

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

*Counsel of Record

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 91-1625

DENNIS J. DOMEGAN,

Plaintiff, Appellee,

Vv.

JOSEPH PONTE, ET AL.,

Defendants, Appellants.

No. 91-1753

DENNIS J. DOMEGAN,

Plaintiff, Appellee,

JOSEPH PONTE, ET AL.,

Defendants, Appellants.

APPELAS FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT

OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Campbell, Circuit Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

Stephen G. Dietrick, Deputy General

Counsel, with whom Nancy Ankers White,

Special Assistant Attorney General, was

on brief for appellants defendants.

Paul E. Nemser with whom Paula M.

Bagger and Goodwin, Procter & Hoar were

on brief for plaintiff appellee.

August 10, 1992

CYR, Circuit Judge. After

former inmate Dennis J. Domegan won a

one dollar damage award in a civil

rights action against certain

Massachusetts corrections officials, the

district court approved an attorney fee

award against the defendants in the

amount of $41,441.55 under 42 U.S.C.

§ 1988. The defendant officials

challenge the fee award primarily on the

ground that Domegan cannot be considered

a “prevailing party” in light of the

results achieved in litigation. With

modifications to the amount of the

award, we affirm the district court

judgment.

BACKGROUND

On August 15, 1983, while

imprisoned at the Massachusetts

Correctional Institution at Walpole

("MCI-Walpole"), Domegan lodged a pro se

complaint in the United States District

Court for the District of Massachusetts,

alleging civil rights violations under

the Eighth and Fourteenth Amendments to

the United States Constitution. The

complaint stemmed from Domegan’s

disciplinary placement on the "Alternate

Feeding Program" ("AFP") at MCI-Walpole

in May and again in July of 1983. a/

1/ The May placement occurred after

Domegan threw his food tray and human

waste against the wall outside his cell;

in July, he threw his food and tray

outside his cell.

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At that time, each meal served to AFP

inmates, including Domegan, consisted

entirely of two cheese sandwiches. The

SOlid steel doors of AFP inmate cells

remained closed. The inmate was given

no hearing prior to the AFP placement.

AFP status was reviewed every five days

by the prison officia] who recommended

the particular placement. Domegan

remained on AFP for seven and one-half

days in May 1983, and for five days in

July 1983.

During March 1984, the district

Court appointed Goodwin, Procter & car

(hereinafter Procter %& Hoar] to

represent Domegan. The fina] amended

complaint asserted three causes of

action: cruel and unusual punishment

(Eighth and Fourteenth Amendments; 42

U.S.C. § 1983; M.G.L. Cc. 12,

§ 11 H,1) ;2/ violation of due process

(Fourteenth Amendment; 42 U.S.C. § 1983;

M.G.L. c. 12, §§ 11 H,1I)? and violation

of the Massachusetts Civil Rights Act

(M.G.L. GC. 12, § 13 1). The final

amended complaint demanded declaratory

and injunctive relief, compensatory

damages totaling $50,000, and $35,000 in

2/ Initially, Domegan sought to

establish that the AFP was violative of

the Eighth Amendmenet, facially and as

applied, but later relinquished the

facial claim. The "as applied" claim

alleged that the defendant officers and

sergeants assigned to the AFP: (i)

turned off the electricity to Domegan’s

cell to prevent him from complying with

the AFP regimen for receiving food at

meal time; (ii) refused to feed him,

knowing that he could not comply with

the AFP regimen; and (iii) turned off

his water supply.

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Punitive damages from each of the ten

defendants.»

Domegan was granted summary

judgment on the procedural due process

3/ The ten defendants named in the

final amended complaint were Joseph J.

Ponte, Superintendent at MCI-Walpole;

Frank Leppert, Administrator of the

Department Segregation Unit ("DSU") at

MCI-Walpole; Peter Gallagher, Acting DSU

Administrator; Sergeants Anthony Silva

and James Brooks; and Officers Carl

Harrison, Gary Mendes, Christopher

Pires, Patrick Smith, and Brian

Bissonnette. Three other defendants

were named in earlier complaints but

were dropped from the final amended

complaint.

On November 1, 1983, two and

Qne-half months after Domegan filed his

PIO se complaint, MCI-Walpole instituted

a more varied and nutritious menu for

AFP inmates. In 1985, MCI-Walpole

revised its post-deprivation review

Procedures, requiring that each AFP

inmate's status be reassessed after each

meal. On or about October ll, 1988,

prior to trial, Domegan was released

from state custody, -and the Claims for

injunctive and declaratory relief were

not pursued.

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Claim. The case proceeded to trial on

the remaining claims in March 1989. The

jury awarded Domegan $1.00 in

"compensatory" damages on the due

process claim, but returned verdicts for

all defendants on the remaining Eighth

Amendment claims. Judgment was entered

in the amount of $1.00 against Ponte,

Leppert, and Gallagher. 4/ Domegan

requested attorney fees and costs in the

amount of $88,655.16, pursuant to 42

U.S.C. § 1988. Although the district

court determined that Domegan was a

“prevailing party" entitled to recover a

reasonable attorney fee, it reduced the

amount of

4/ It is not clear why judgment was

never entered against the other seven

defendants.

- Ga -

the award to $41,441.55 in light of the

limited success achieved in litigation.

The defendants Challenge the fee award

on several grounds.’

DISCUSSION

A. 3 + lerieadio:s

The district court “Memorandum

and Order” awarding attorney fees was

entered on May 24, 1991. A defective

notice of appeal (No. 91-1625) was filed

on June 24, 1991, naming no appellant

except Ponte, and then only in the

2/ Although judgment was entered only

against defendants Ponte, Leppert and

Gallagher, the other seven defendants

joined the appeal because the attorney

fee award ran against “defendants.” As

Domegan correctly concedes, however,

there is no basis for an award against

the seven codefendants who were found

not liable. Accordingly, we dismiss

these seven defendants-appellants.

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following caption: “Domegan v. Ponte, et

al." See Torres v. Oakland Scavenger

Co., 487 U.S. 312, 314-15, 318 (1988)

(use of “et al." does not satisfy Fed.

R. App. P. 3(c) requirement that notice

of appeal specify parties appealing) ;

Pontarelli v. Stone, 930 F.2d 104,

108-09 (lst Cir. 1991) (same). In

response to our order to show cause why

the appeal ought not be dismissed except

as to Ponte, on July 16 a motion for

permission to file an amended notice of

appeal was filed by defendants’ counsel

_ with the district court. See Fed. R.

App. P. 4(a)(5). The district court

granted the motion ex parte on the

following day. But see id. ("Notice of

any such motion which is filed after the

expiration of the prescribed time shall

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be given to the other parties in

accordance with local rules."). See

also D. Mass. R. ¥.E€6) €2), 0B), (0) « -AD

amended notice of appeal (No. 91-1753),

naming all ten appellants, was promptly

filed.

Domegan contends that the ex parte

district court order, permitting

appellants to file a corrected notice of

appeal after the expiration of the

Original appeal period, was ineffective

Since the fourteen-day notice required

by Local Rule 7.1 was not served. see

Fed. R. App. P. 4(a)(5); D. Mass. R.

7.1(€a)(2),(b),(e); see also, e.g., Hable

v. Pairolero, 915 F.2d 394, 395 (8th

Cir. 1990) (requiring notice of rule

4(a)(5) motion); Truett v.

Johns-Manville Sales Corp., 725 F.2d

1301, 1302 (11th Cir. 1984) (same).

Domegan also challenges the sufficiency

of the showing of "good cause" or

"excusable neglect" required under Fed.

R. App. P. 4(a)(5)- See, €-qg-,

Pontarelli, 930 F.2d at 109-112. We

need not address Domegan’s contentions,

however, as the initial notice of appeal

was premature.

The district court "Memorandum and

Order," entered May 24, did not satisfy

the "separate document" rule. See Fed.

R. Civ. P. 58 advisory committee note

(1963) ("The amended rule

requir{es] that there be a judgment set

out on a separate document --- distinct

rom any opinion or memorandum --~- which

provides the basis for the entry of

judgment.") (emphasis added); Fiore v.

- iJj3a =

Washington county Community Mental

Health Ctr., 960 F.2d 229, 234-35 (lst

Cir. 1992) (en banc) (discussing

generally the nature of a separate

document); Smith v. Massachusetts Dep't

of Correction, 936 F.2d 1390, 1393-94

(lst Cir. 1991) (memorandum and order

does not constitute “separate

document"); In re Smith Corset Shops,

Inc., 696 F.2d 971, 975 (lst Cir. 1982)

(same, applying analogous Bankruptcy

Rule). As the order appealed from was

not a “final judgment," see Fed. R. Civ

P. 54(a), 58, the appeal period never

commenced running prior to the filing of

the corrected notice of appeal. Fed. R.

App. P. 4(a)(1), (7); Smith, 936 F.2d at

1394; Scola v. Boat Frances, R., Inc.,

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618 F.2d 147, 151 (1st Cir. 1980); see

also Bankers Trust Co. v. Mallis, 435

U.S. 381, 384-86 (1978) (per curiam)

(purpose of "separate document" rule is

to promote greater predictability as to

when time for appeal begins to run);

Fiore, 960 F.2d at 233 (same) .2&/

Although appellants at all times

treated the May 24 "Memorandum and

Order" as an appealable order, the

"separate document" rule is to be

6/ We raise the “separate document"

issue sua sponte, as it is intertwined

with Domegan’s jurisdictional

challenge. See, e.q., Caperton v.

Beatrice Pocahontas Coal Co., 585 F.2d

683, 688-89 (4th Cir. 1978) (raising

"separate document" issue sua sponte) ;

see also Parisie v. Greer, 705 F.2d 882,

890-91 (7th Cir.) (Eschbach, J.)

(discussing duty of court to raise

"Separate document" issue sue sponte),

cert. denied, 464 U.S. 918, and cert.

denied, 464 U.S. 950.

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strictly applied .6 ncerns the

commencement of the appeal period. See

United States v. Indrelunas, 411 U.S.

216, 221-22 (1973) (per curiam)

(applying rule 58 mechanically

notwithstanding previous aborted appeal

by same appellant within appeal period);

Fiore, 960 F.2d at 235 (discussing

technicality of rule 58); Gregson &

Assocs. Architects v. Government of the

Yi.1., 675 €.26.569,. 592-82 (36 (ie.

1982) (Indrelunas applied despite both

parties’ treatment of memorandum opinion

as appealable order); Caperton v.

Beatrice Pocahontas Coal Co., 585 F.2d

683, 688-90 (4th Cir. 1978) ("nor are we

free to penalize plaintiffs .. . by

binding them to their erroneous

assertion that judgments" had been

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entered); see also Fiore, 960 F.2d at

237 (emphasizing that the "separate

document" requirement "should always be

interpreted ‘to prevent loss of the

right to appeal, not to facilitate

loss’") (quoting Bankers Trust, 435 U.S.

at 386); Willhauck v. Halpin, 919 F.2d

788, 792 (1st Cir. 1990) (same); 9

Moore’s Federal Practice § 58.02.1[2],

at 58-20 to 21. Nevertheless, a notice

of appeal deemed premature due to

noncompliance with the "separate

document" rule does not deprive the

appellate court of subject matter

jurisdiction, Bankers Trust, 435 U.S. at

384, 385; see also Smith, 936 F.2d at

1394 (applying Bankers Trust), and the

appeal may proceed in the normal course

where the court of appeals determines

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that the “separate document” requirement

was waived by the parties. Bankers

Trust, 435 U.S. at 384-86; Smith, 936

F.2d at 1394.

The district court treated its May

24 “Memorandum and Order" as an

appealable order; it was duly docketed;

and no party challenged appellate

Jurisdiction for failure to comply with

the “separate document” requirement.

See Smith, 936 F.2d at 1394 (finding

waiver); see also Bankers Trust, 435

U.S. at 387-88 (considering same

factors). Compare Fiore, 960 F.2d at

232, 237. All parties to the present

appeal consistently treated the May 24

"Memorandum and Order” as a final

judgment and there is no suggestion that

unfair prejudice would be occasioned any

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party by our assertion of appellate

jurisdiction, without remanding for

formal compliance with the "separate

document" requirement. See Smith, 936

F.2d at 1394 (assertion of appellate

jurisdiction proper, as parties waived

"Separate document" requirement and

would not be prejudiced). Moreover,

dismissal of the second notice of appeal

in these circumstances, solely to permit

compliance with the "separate document"

rule, would force "[w]Jheels to [to] spin

for no practical purpose." Bankers

Trust, 435 U.S. at 385; Smith, 936 F.2d

at 1394 ("We will not needlessly ‘force

the parties round and round the mulberry

bush’ . .. ." (quoting Jusino v. Zayas,

875 F.2d 986, 989-90 (lst Cir. 1989)).

The principal focus of

appellants' discontent with the fee

allowance in the instant case is that

the district court determined that

Domegan was a “prevailing party” even

though he obtained only a one dollar

Gamage award. Absent “special

circumstances" which would render an

award unjust, ordinarily a civil rights

plaintiff who qualifies as a “prevailing

party” is entitled to a reasonable award

of attorney fees under 42 U.S.C.

§ 1988.2

7/ Section 1988 provides, in part: “In

any action or proceeding to enforce a

provision of section[] oy

BUGe «+ s7¢ SRS GUEEE; 28 38

discretion, may allow the prevailing

party .. . a reasonable attorney's fee

as part of the costs." 42 U.S.C. § 1988.

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Hensley v. Eckerhart, 461 U.S. 424, 429

(1983); de Jesus v. Banco Popular de

Puerto Rico, 918 F.2d 232,.234 (1st Cir.

1990); Stefan v. Laurenitis, 889 F.2d

363, 370 (lst Cir. 1989).

A prevailing party is one who “has

succeeded on ‘any significant issue in

litigation which achieve[d] some of the

benefit the [plaintiff] sought in

bringing suit’ ... ." Texas State

Teachers Ass’n v. Garland Indep. Sch.

Dist., 489 U.S. 782, 791-92 (1989)

(hereinafter Texas Teachers] (quoting

Nadeau v. Helgemoe, 581 F.2d 275, 278-79

(lst Cir. 1978)). “[{A}t a minimum

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 792.

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Moreover, even under this “generous

formulation,” as the Court stated in

Texas Teachers, the plaintiff cannot

qualify as a “prevailing party” if his

"success on a legai claim can be

characterized as purely technical or de

Minimis ... .” Jd, "The touchstone of

the prevailing party inquiry must be the

materia] alteration of the legal

relationship of the parties in a manner

which Congress sought to promote in the

fee statute.” Id. at 792-93 (emphasis

added).

The district court determination

that Domegan met the “prevailing party”

test 1s subject to de novo review. See

Romberg v. Nichols 953 F.2d 1152, 1156

(9th Cir. 1992) ("We must reverse

if the district court applied incorrect

legal standards to reach [the factual

finding underlying its “prevailing

party" determination]."); Guglietti v.

Secret of Health & Huma ;

900 F.2d 397, 399 (list Cir. 1990) (where

normal deference due EAJA fee award

could not be accorded because district

court misapprehended the record, court

of appeals would decide case, rather

than remand, as the facts were not in

genuine dispute and the “prevailing

party” question is “largely one of law

oD But cf. McDonald v. Secretary of

Health & Human Services, 884 F.2d 1468,

1474 (list Cir. 1989) (“abuse of

discretion" standard governs review of

“prevailing party" determination

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in EAJA fee award cases) . 2

8/ McDonald broadly established an

“abuse of discretion” standard of review

for all “prevailing party”

determinations in EAJA cases. As

Subsequently demonstrated in Guglietti,

however, certain aspects of the

“prevailing party” determination in a

particular case may turn solely on the

proper legal standard, making de novo

review appropriate. The “prevailing

party” determination in the present case

does not entail any of the

considerations which led us to apply a

deferential standard of review in

McDonal¢?. Nor does it involve

fact-based inquiries like those we found

appropriate for deferential review in

Langton v. Johnston, 928 F.2d 1206, 1225

(Ist Cir. 1991) (district court

assessment of causation and materiality

elements in the “catalyst” test) (§ 1988

award). The only question in the

present case is whether a judgment for

one dollar in damages entitles Domegan

to “prevailing party” status. The facts

are not in dispute, see Guglietti, 900

F.2d at 399, and application of the

“prevailing party” test presents a pure

question o¢ law warranting plenary

review.

Moreover, as we have explained, the

district court's discretion to deny a

fee award to a “prevailing party” under

section 1988 is narrowly circumscribed:

(footnote continued)

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Although Domegan met with no

success on the Eighth Amendment and

state law claims, he obtained a

favorable verdict on the procedural due

process claim, a “significant issue in

litigation." See Langton v. Johnson,

928 F.2d 1206, 1226 (lst Cir. 1991)

(assessing significance "given the scope

(footnote continued)

Despite the explicit grant of

discretion in section 1988, it is

well-established [sic)}) that a court

may not deny an award of attorney’s

fees to a prevailing civil rights

plaintiff in the absence of special

circumstances rendering the award

unjust, and this court requires

findings of fact and conclusions of

law identifying the special

circumstances and explaining why an

award would be inappropriate.

de Jesus, 918 F.2d at 234 (citations

omited) (emphasis added).

and tenor of the litigation as a

whole") .2’

9/ Appellants attempt to demonstrate

the de minimis nature of Domegan's one

dollar "compensatory" damage award on

the procedural due process claim against

three defendants by pointing out that he

asserted 42 “defendant/counts” at the

"height" of the litigation. The same

sort of argument was made by the

defendants in Rogers v. Qkin, 821 F.2d

22 (lst Cir. 1987), cert. denied, 484

U.S. 1010 (1988). In rejecting their

contention, this court stated that the

defendants had “adopted the kind of

‘mathematical aporoach' criticized in

[Hensley v. Eckerhart, 461 U.S. 424,

$239-36 8.11% 42963)) . «.. 3" JG, at

25. Along the lines explained in

Rogers, “prevailing party" success

cannot be measured by an arithmetic

comparison of the claims and defendants

joined in the complaint with the number

of claims and defendants named in the

final judgment. Jd. (rejecting

defendants' attempt to minimize

plaintiffs' success by claiming victory

on “no fewer than 224" issues); see

Hensley, 461 U.S. at 435-36 n.1l

(mathematical comparison of the total

number of issues in a case with those

actually won “provides little aid in

determining what is a reasonable fee in

light of all the relevant factors"),

quoted in Rogers, 821 F.2d at 25.

(footnote continued)

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Appellants insist, nonetheless, that the

final judgment cannot have had any

Significant effect on their legal

relationship with Domegan, and question

how a one dollar damage award can be

considered other than de minimis

success. Although one dollar most

assuredly is a nominal amount, the final

judgment nonetheless represented "some"

(footnote continued)

Domegan’s procedural due process claim

doubtless represented a significant

constitutional claim in qualitative

terms. We cannot treat the quantitative

dimensions of the relief obtained on the

due process claim as dispositive of the

allowability, vel non, of a § 1988 fee

award, as distinguished from the

reasonableness of the amount awarded.

Texas Teachers, 489 U.S. at 790,_793

("the degree of the plaintiff’s overall

success" goes to the reasonableness, not

the allowability of the award); Nadeau

v. Helaemoe, 581 F.2d 275, 281 (1st Cir.

1978) (some fee award appropriate where

success is but partially attributable to

plaintiff’s lawsuit).

~ 414°

of the benefit sought in the litigation;

namely, an enforceable judgment against

the defendant officials who deprived the

plaintiff of the constitutional right to

Gue process of law. We are unable to

agree that an enforceable judgment for

nominal damages redressing significant

procedural due process violations cannot

qualify the plaintiff for "prevailing

party” status. 22/

10/7 similarly, the Supreme Court has

never intimated that a valid final

judgment declaring a violation of a

claimant’ S Civil rights constituted

purely technical or de minimis" success

Simply because no compensatory damage

award or injunctive relief was

obtained. Rather, presumably in

recognition of the-fact that the wrong

occasioned by a procedural due process

violatidn often is not susceptible to

monetary measurement, The Court has

stated that plaintiffs who establish a

procedural due process violation

“nevertheless will be entitled to

recover nominal damages not to exceed

one Goilar . .-. .* Geser vv. Binws, <€35

U.S. 247, 267 (1978)

(footnote continued)

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a. Baseline Criteria

Prior to Texas Teachers at least,

attorney fees were not withheld under

section 1988 simply because the

plaintiff merely obtained a nominal

(footnote continued)

(emphasis added); Maldonado Santiago v.

Velazquez Garcia, 821 F.2d 822, 829 (1st

Cir. 1987) (citing Carey). See Memphis

Community Sch. Dist. v. Stachura, 477

U.S. 299, 308 n.11 (1986) (Nominal

damages "are the appropriate means of

‘vindicating’ rights whose deprivation

has not caused actual, provable

injury"); see also, e.g., Fassett by and

through Fassett v. Haeckel, 936 F.2d

118, 121 (2d Cir. 1991) (Fourth

Amendment violation); Floyd v. Laws, 929

F.2d 1390, 1401-03 (9th cir. 1991)

(violation of "constitutional rights") ;

Cowans v. Wyrick, 862 F.2d 697, 699, 700

(8th cir. 1988) (Eighth Amendment

violation); Farrar v. Cain, 756 F.2d

1148, 1152 (5th Cir. 1985) (violation of

"civil rights"); Kincaid v. Rusk, 670

F.2d 737, 746 (7th Cir. 1982) (violation

of due process and First Amendment) ;

McGhee v. Draper, 639 F.2d 639, 646

(10th Cir. 1981) (due process

violation). But cf. Ganey v. Edwards,

759 F.2d 337 (4th Cir. 1985) (award of

nominal damages left to jury).

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damage award. Perez v. University of

Puerto Rico, 600 F.24@ 1, 2 tist Cir:

1979) ("Fees may not be denied simply

because only nominal damages are

awarded."); Ganey v. _Edwards, 759 F.2d

337, 339-40 (4th Cir. 1985) (liability

determination need not even be

accompanied by nominal damage award);

Burt v. Abel, 585 F.2d 613, 618 (4th

Cir. 1978) (nominal damage award

sufficient); Basiardanes v. City of

Galveston, 682 F.2d 1203, 1220 (5th Cir.

1982) (judgment for nominal damages may

warrant fee award); Skoda v. Fontani,

646 F.2d 1193, 1194 (7th cir. 1981) (per

curiam) ($1.00 judgment satisfies

"prevailing party"* requirement); Hogue

v. Clinton, 791 F.2d 1318, 1323 (8th

Cir.) (absent proof of actual injury,

- 30a -

plaintiff should be granted nominal

damages and attorney fees), cert.

denied, 479 U.S. 1008 (1986); Scofield

v. City of Hillsborough, 862 F.2d 759,

766 (9th Cir. 1988) (attorney fees

allowable solely on basis of nominal

Gamage award); see Derr v. Gulf Oil

Corp., 796 F.2d 340, 344 (10th Cir.

1286) (title VII case citing Nephew v.

City of Aurora, 766 F.2d 1464, 1466

(10th Cir. 1985)), a § 1988 case

subsequently reversed on other grounds,

830 F.2d 1547 (10th Cir. 1987) (en

banc); nominal damage award entitled

plaintiff to attorney fees); Garner v.

Wal-Mart Stores, Inc., 807 F.2d 1536,

1539 (11th Cir. 1987) (Title VII case;

nominal damage award confers "prevailing

party" status). But compare Huntley v.

-— 27a ~

Community Sch. Bd., 579 F.2d 738, 742

(2d Cir. 1978) (district court did not

abuse discretion in determining that

$100 damage award on procedural due

process claim amounted, at most, to

"moral victory") with Milwe v. Cavuoto,

653 F.2d 80, 84 (2d Cir. 1981) (nominal

damage award on constitutional claim

stemming from official misconduct

"sufficient to support an award of

fees") (alternate holding).

Much as the Fifth circuit recently

pointed out, however in Estate of Farrar

v. Cain, 941 F.28 131413. 2337 oem Cee.

1991) cert. granted sub nom. Farrar v.

Hobby, 112 S. Ct. 1159 (1992) all of the

cases cited above, except Scofield,

antedate Texas Teachers as well as

Hewitt v. Helms, 482 U.S. 755

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(1987), and Rhodes v. Steward, 488 U.S.

1 (1988) (Per Curiam). Furthermore the

courts of appeals which have been

presented with the issue in the wake of

Texas Teachers have drifted apart.

1léompare Romber v. Nichols, 953 F.2d

1152. 1159 (9th Cir. 1992) ("a nominal

damage award does not a nominal victory

make"); Fassett by and through Fassett

v. Haeckel, 936 F.2d 118, 122 (2d Cir.

1991) (fee award appropriate where

1l/ The Fourth and Fifth Circuits have

concluded, contrary to the’ pre-Texas

Teachers precedent, that a nominal

damage award also cannot confer

"prevailing party" status. See Denny v.

Hinton, 131 F.R.D. 659, 662-63 (M.D.N.C.

1990), aff’d mem., Denny v. Elliot 937

F.2d 602 (4th Cir.), and aff’d mem.

Lawrence v. Hinton, 937 F.2d 603 (4th

cir. 1991); Estate of Farrar, 941 F.2d

at 1315 (where sole purpose of lawsuit

was to recover damages).

= 338 =

nominal damages are recovered for

deprivatior of an absolute

constitutional right) (citing Ruggiero

v. Krzeminski 928 F.2d 558, 564 (2d Cir.

1991)) with Estate of Farrar, 941 F.2d

at 1315-17 (nominal damage award

represents de minimus success where sole

purpose of lawsuit was recovery of

damages); Spencer General Electric Co.,

894 F.2d 651, 651, 662 (4th Cir. 1990)

(dicta) (indicating that $1.00 judgment

might constitute de minimis success

absent any other favorable litigation

result); Denny v. Hinton, 131 F.R.D.

659, 662-63 (M.D.N.C. 1990) (nominal

damage award constitutes de minimis

success), aff'd mem., Denny v. Elliott,

937 F.2d 602 (4th Cir. 1991), and

Lawrence v. Hinton, 937 F.2d 603 (4th

- 34a -

Cir. 1991). See also Brewer v. Chauvin,

938 F.2d 860, 864 (8th Cir. 1991)

(citing Hogue v. Clinton, 791 F.2d 1318

(8th Cir. 1986)).

As Texas Teachers explains, in

order for a claimant to qualify for

"prevailing party" status the litigation

must achieve, at a minimum, a "material

alteration" in the legal relationship

between the parties. Texas Teachers,

489 U.S. at 792. The Court in Texas

Teachers limned its "material

alteration" standard, in broad outline,

through reference to two earlier cases,

see id. (discussing Hewitt v. Helms, 482

U.S. 755 (1987), and Rhodes v. Stewart,

488 U.S. 1 (1988) (Per Curiam)), to

which we now turn.

- 35a -

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dismissing one of Helms’ claims. After

remand from the Supreme Court, the Third

Circuit reaffirmed its earlier holding

on the other due process claim and again

remanded to the district court on the

issue of qualified immunity. On remand,

Helms did not pursue injunctive relief.

The district court once again entered

summary judgment against Helms, on the

ground that the defendants were immune

from liability for damages, and denied a

fee award under section 1988. The Third

Circuit again reversed, on the ground

that its earlier interlocutory ruling

that Helms’ due process rights had been

violated constituted significant success.

The Supreme Court disagreed.

Justice Scalia pointed out that Helms

had obtained no relief whatever on any

- 37a -

Claim in litigation -- no judgment, no

damages, no injunctive relief, and no

declaratory relief. “The most that he

obtained was an interlocutory ruling

that his complaint should not have been

dismissed for failure to state a

constitutional claim.” Hewitt, 482 U.S.

at 760 (emphasis added). The Supreme

Court refused to equate the Third

Circuit ruling with declaratory relief,

Since the interlocutory ruling could not

conceivably alter the legal relationship

between the parties

l12/ It 1s to this same discussion in

Hewitt, 482 U.S. at 760-61, that the

court cites in Texas Teachers, 489 U.S.

at 792, to explicate its threshold

Standard for “prevailing party” status

under 42 U.S.C. § 1988. We consider it

no happenstance that Texas Teachers and

Hewitt both cite to Hanrahan v. Hampton,

446 U.S. 754 (1980) (Per Curiam), and

its seminal discussion of the threshold

test for “prevailing party” status. See

infra at note 13.

in the face of a final judgment "against

the plaintiff .. .," id. at 763

(emphasis added), and the litigation

resulted in no other "relief" which

“affect(ed) the behavior of the

defendant(s) towards the plaintiff," id.

at 761 (emphasis in original).

We are not persuaded that Hewitt

can be considered analogous authority

for withholding "prevailing party"

status on the ground that a final

judgment for nominal damages is no

different than the Third Circuit

interlocutory ruling declaring a

. violation of Helms’ due process rights.

Moreover, as the Court clearly explained

in Hewitt:

Respect for ordinary language

requires that a plaintiff

receive at least some relief

- 39a -

on the merits of his claim

before he can be said to

prevail. See Hanrahan v.

Hampton, 446 U.S. 754, 757

(1980). Helms obtained no

relief. Because of the

defendants' official immunity

he received no damages award.

No injunction or declaratory

judgment was entered in his

favor. Nor did Helms obtain

relief without benefit of a

formal judgment -- for

example, through a consent

decree or settlement. See

Maher v. Gagne, 448 U.S. 122,

129 (1980). The most that he

obtained was an interlocutory

ruling that his complaint

should not have been dismissed

for failure to state a

constitutional claim. That is

not the stuff of which legal

victories are made. (Cf.

Hanrahan, supra, at 758-59.

13/

402 U.S. at 760.

13/7 In Hanrahan, 446 U.S. at 756-57,

the Supreme Court reversed a § 1988 fee

award made pendente lite to appellate

counsel, on the ground that all rulings

favorable to the plaintiffs were

interlocutory and procedural. The Court

noted that --

(footnote continued)

- 40a -

a en

The Fifth Circuit recently vacated

(footnote continued)

it seems clearly to have been the

intent of Congress to permit such

an interlocutory award only to a ~

party who has established his :

entitlement to some relief on the

merits of his claims, either in the

trial court or on appeal. The

congressional Committee Reports

described what were considered to

be appropriate circumstances for

such an award by reference to two

cases -- Bradley v. Richmond School

Board, 416 U.S. 696 (1974), and

Mills v. Electric Auto-Lite Co.,

396 U.S. 375 (1970). S. Rep. No.

94-1011, [p.] 5 [(1976)]; H.R. Rep.

No. 94-1558, [p.] 8 [(1976)]. In

each of those cases the party to

whom fees were awarded had

estiblished the liability of the

opposing party, although final

remedial orders had not been

entered.

Id. at 757 (emphasis added). Texas

Teachers, 489 U.S. at 790-92, reaffirms

this essential element of the

"prevailing party" test which was

discussed not only in Hanrahan, 446 U.S.

at 757, but in Hewitt, 482 U.S. at 760,

as well.

Furthermore, as Hanrahan indicates,

in Mills v. Electric Auto Lite Co., 396

U.S. 375 (1970), the Court deemed an

interim fee award appropriate once

liability had been determined, even

(footnote continue.)

~ <a >

a section 1988 fee award to plaintiffs

(footnote continued)

though "the question of relief [would]

await further proceedings ... .; that

is, even though no order directing

relief had yet been granted. It is

particularly noteworthy, we believe,

that Mills is cited with approval in the

companion Senate Report accompanying

§ 1988, as well as in the House Report,

Since the latest Supreme Court

pronoucement on the subject states 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."

Texas Teachers, 489 U.S. at 793

(emphasis added). Of course, the Hewitt

Citation to Hanrahan illuminates the

reason Helms could not possibly have

been granted "prevailing party" status,

Since he never establisned entitlement

to any relief.

Finally, the Supreme Court observed

in Hanrahan:

It seems apparent from these

passages that Congress intended to

permit the interim award of counsel

fees only when a party has

prevailed on the merits of at least

some of his claims. For only in

that event has there been a

determination of the ‘substantial

rights of the parties,' which

(footnote continued)

- 42a -

whose only relief on the merits of their

claims was a judgment for nominal

damages, stressing "the principles set

forth in [Hewitt] and applied in Rhodes

[v. Stewart) ... ." Estate of Farrar

v. Cain, 941 F. 2a at 1311, 1317 (5th

Cir. 1991), cert. granted sub non.,

arrar v.Hobby, 112 S. Ct. 1159 (1992).

With respect, and recognizing the

closeness of the question, we would

ascribe a somewhat different intendment

to the principles enunciated in Hewitt

(footnote continued)

Congress determined was a necessary

foundation for departing from the

usual rule in this country that

each party is to bear the expense

of his own attorney.

Hanrahan, 446 U.S. at 757-58 (emphasis

added) (quoting H.R. No. 94-1558, p. 8

(1976)).

- 43a -

and applied in Rhodes; that is, as not

precluding "prevailing party” status for

the claimant who obtains sufficient

relief to effect a material alteration

in the legal relationship out of which

the claim for relief arose. In other

words, we think the principles

enunciated in Hewitt portend no

Significant departure from earlier

Supreme Court criteria for determining

“prevailing party" status on the part of

a plaintiff who obtains an enforceable

judgment for nominal damages on a

Significant constitutional claim. +4/

14/ Prior to Hewitt, the Court held

that "liability on the merits and

responsibility for fees go hand in hand;

where a defendant has not been prevailed

against, either because of legal

immunity or on the merits, § 1988 does

not authorize a fee award against that

(footnote continued)

- 44a -

The other Supreme Court case

discussed in Texas Teachers is Rhodes v.

Stewart, 488 U.S. 1 (1988) (Per Curiam),

a section 1983 action in which two

prison inmates obtained a judgment

declaring that their First and

Fourteenth Amendment rights had been

violated by prison officials who failed

to comply with prison administrative

procedures regulating magazine

subscriptions by inmates. The district

court judgment ordered compliance and

awarded attorney fees. The Sixth

Circuit affirmed the section 1988 fee

(footnote continued)

defendant." Kentucky v. Graham, 473

U.S. 159, 165 (1985) (emphasis added).