Petition for Writ of Certiorari — Patterson v. District of Columbia

fy) FILED

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NO.__semge OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

Terrie Patterson, Michael Smith. Tammy Williams,

Sheila Center, Michael Foman, Steven Balton, Sandra

Hill-Harris, Walter Hollman, Thomas Irving Jones, Jr.,

Lennox Layne, Wanda Murray, Elijah Turner, Helen

Dickens, Roger Brown and Morris Hinton,

Petitioners,

V.

The District of Columbia, Maurice Turner,

Marion Barry and Ronald Gibon,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

Brenda Grantland Landon Gerald Dowdey

20 Sunnyside Street 2000 L Street, N.W.

Suite A-204 Suite 200

Mill Valley, Washington, D. C. 20036

California 94941 (202) 416-1626

(415) 380-9108

Counsel of Record

Counsel to petitioners to petitioners

QUESTIONS PRESENTED

Whether the remedial purpose of the Civil Rights

Attorney’s Fee Award Act of 1976, 90 Stat. 2641, 42 U.S.C.

§ 1988, is undermined by the majority opinion of the Dis-

trict of Columbia Court of Appeals

(1) In the restrictive construction it imposes on the

“prevailing party” requirement of that statute and its fail-

ure to consider the “public purpose this litigation might

have served," Farrar v. Hobby, 506 U.S. 103, 121-122 (1992)

(concurring opinion of Justice O'Connor);

(2) In refusing to recognize, in conflict with decisions

of this Court and the federal circuits, that counsel who

has prevailed or settled any constitutional claim is en-

titled to compensation for all hours expended on “related

claims” excepting only those that are “distinct in all re-

spects from his successful claims;” and

(3) In failing to recognize, in conflict with decisions

of this Court and the federal circuits, that a fee award

may include an enhancement for delay in payment.

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TABLE OF CONTENTS

SMa © CTR OE ss 5 Wi pcesabancvneneacas ii

SARIEARE Pik ER AA TO ok bcc itn as vee vcacevns Vv

CT PTs 6 da Shik cha 8 odin Oa ee an ckss 2

eS Sea aie 2

STATUTORY PROVISIONS INVOLVED. .......... “2

DRONA GAs Un es cos 6 0a CdS eke se cce 2

REASONS FOR GRANTING THE WRIT. ............ 4

(1) The prevailing party issue and the

public purpose served by this litigation. ...... 4

C7) Berta Cais HOU. 3s a vs vss so ccc eves 5

(3) Enhancement for delay in payment......... 8

CMMI CEU RS oso bias c cWecvawkscseesee 8

Pare RIT os wn SN She Ee sc oo 54s kane App.1

iii

iv

TABLE OF AUTHORITIES

Cases;

Austin v. United States, 509 U.S. 602 (1993)........... 9

District of Columbia v. Patterson, et al.

COP Fie BO PARI POR thao’ haan sc ccees. .2,App.A

Farrar v. Hobby, 506 U.S. 103,121-122 (1992) .. ......... ii,4

Henderson v. District of Columbia,

co Op aE dle | Ee 7

Hensley v. Eckerhart, 461 U.S. 424, 440-41 (1983). ...... 6,7

Hutchison v. Amateur Electronic Supply, Inc.,

op Es | | ES enn eee 6

Mary Beth G. v. City of Chicago,

729 F 20 1203, 1279 (7 Cir. 1983)... cece ewes 6

Norman v. Housing Authority,

te BE COMIN Beis oc ccc cess eres mesad 6

Patterson v. District of Columbia,

Se Me TURN PEC EPIIGS «vo be iw bec vnrotoeecencee 2,3,4

Pennsylvania v. Delaware Valley Citizens’ Council,

FE Ge EEN Uae vbivesccncevesscccsses 8

Shelden v. United States, 7 F.3d 1022 (Fed. Cir. 1993). ...5

Texas Teachers Assn. v. Garland Independent

scot District, 499 US. 755 (IFG7). 0... ccc cece eee 4

United States v. James Daniel Good Real Property,

Pt MRI Mia Wire eA knveees bem e sees caccugea. 2

Wayne v. Village of Sebring,

OF Tue PET Pe EN Sl FIR he ce ide cs tccedecscucce 6

Constitution of the United States:

nap emnen e's eras

ON EE AFC E I Oe OT Pere ee a

Fifth Amendment, Taking Clause ...............--..- 5

SARIS EEE TEE” rE ee

Eighth Amendment

Acts of Congress:

Civil Rights Attorney’s Fee Award Act of 1976,

FO Sea: FOETUS RIGGS acc cicsscekinanves ii,2,4.8

ORIG MN ea a coe 2

D.C. Code

GRIN CEOO Do cs conti dennekewkbiss Eeiwtett eee 2

BER: ss . Orck Cid ge b a bear bane ora 3

ss. isch Gi va, 3

Court Rules

Sup. Ct. Civ. P. Rule 54(b) (F.R.Civ P. 54(b))............ 5

vi

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

Terrie Patterson, Michael Smith. Tammy Williams,

Sheila Center, Michael Foman, Steven Balton, Sandra

Hill-Harris, Walter Hollman, Thomas Irving Jones, Jr.,

Lennox Layne, Wanda Murray, Elijah Turner, Helen

Dickens, Roger Brown and Morris Hinton,

Petitioners

v.

The District of Columbia, Maurice Turner, Marion

Barry and Ronald Gibon,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA

COURT OF APPEALS

Terrie Patterson, Michael Smith. Tammy Williams,

Sheila Center, Michael Foman, Steven Balton, Sandra Hill-

Harris, Walter Hollman, Thomas Irving Jones, Jr., Lennox

Layne, Wanda Murray, Elijah Turner, Helen Dickens,

Roger Brown and Morris Hinton respectfully petition for

a writ of certiorari to review the judgment of the District

of Columbia Court of Appeals in this case.

OPINIONS BELOW

The opinion of the Court of Appeals, sub. nom. Dis-

trict of Columbia v. Patterson, et al. (App. A, infra, 1-21) is

reported at 667 A.2d 1338 (D.C.1995). The opinion of the

lower court from which the appeal was taken is not re-

ported; however, one of the opinions on the merits of the

case for which attorney’s fees are sought is reported,

Patterson v. District of Columbia, 117 D.W.L.R. 741 (1989).

JURISDICTION

The Court of Appeals entered its judgment on No-

vember 30, 1995. A timely petition for rehearing and sug-

gestion of rehearing en banc was denied August 9, 1996,

two judges voting for an en banc hearing. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1254.

STATUTORY PROVISIONS INVOLVED

This case involves interpretation of the Civil Rights

Attorney’s Fee Award Act of 1976, 90 Stat. 2641, 42 U.S.C.

§ 1988. The text of that statute is set forth in the cited opin-

ions of this Court construing this legislation.

STATEMENT

The attorneys’ fees sought in this case arose in litiga-

tion commenced in March of 1987 against the District of

Columbia, its mayor and other public officials claiming

that in their administration of local civil forfeiture stat-

utes. they systematically violated plaintiffs’ Fourth, Fifth,

Sixth and Eighth Amendment rights.

January 6, 1989 Superior Court Judge Rufus King, III

rejected plaintiffs’ Fifth, Sixth and Eighth Amendment

challenges to the District's Civil Forfeiture Act, D.C. Code

§ 33-552 (1988 Repl.), holding, however, that "as imple-

mented in these cases" it is nevertheless "subject to the

requirements of the Fourth Amendment.” Thus “claim-

ants from whom property has been seized have a right to

a probable cause determination, post seizure at their re-

quest."

A declaratory judgment was entered accordingly.

Patterson v. District of Columbia, 117 D.W.L.R. 741 (1989).

Other local forfeiture statutes, D.C. Code §22-1505(c), §4-

153 and police regulations were also involved, but not

discussed in this opinion.

October 20, 1988, while Judge King was considering

the motions that eventuated in his 1989 decision, a mo-

tion for summary judgment was filed on behalf of plain-

tiffs Morris Hinton and Lennox Layne asserting that the

District's notice procedures in forfeiture cases were con-

stitutionally deficient under the Fifth Amendment.

Despite plaintiffs’ efforts, no hearing could be obtained

on these and other claims until 1992 after the case was

finally assigned to Judge Wertheim. All remaining claims

were finally settled in the spring of 1992. It was Judge

Wertheim's opinion that "the District's strategy through-

out this litigation was to nitpick plaintiffs’ counsel to

death."

Thereafter plaintiffs’ counsel submitted detailed fee

applications. Judge King found that counsel's customary

hourly rates "were reasonable” and that the "hours spent

on this litigation may have reached the totals claimed,”

being "based on contemporaneous time records."

Judge King nevertheless concluded that the total hours

claimed “do not all represent reasonably necessary time

for litigation of the constitutional issue as to which Plain-

tiffs prevailed.” Thus a “reduction of one-half appears ap-

propriate as to both claims to more accurately reflect the

hours spent on the Fourth Amendment issues." After thus

cutting counsel's time expenditures in half, the court dis-

counted the resulting halved lodestar by another third.

The District appealed, claiming no fee award should

have been made, and plaintiffs cross appealed as to the

amount of the award.

REASONS FOR GRANTING THE WRIT

Each and every one of the majority rulings represents

a powerful discouragement to the prosecution of Civil

Rights violations. Collectively, they represent a near total

defeat of the remedial purpose of the Civil Rights

Attorney’s Fee Award Act of 1976. How many lawyers,

looking at the voluminous record in this nine year old

case and the novelty of the constitutional issues presented

when it was filed, would assume the financial burdens it

entailed if he or she knew in advance that compensation

for such services would be so grudgingly scrutinized and

discounted?

(1)

The prevailing party issue and the

public purpose served by this litigation

The importance of this ruling and its deviation from es-

tablished interpretations by this Court and the federal

circuits is amply demonstrated in the dissenting opinion

of Chief Judge Wagner, App.A, infra, 17-21.

A further consideration for review by this Court is the

impact of the 1989 declaratory judgment, Patterson v. Dis-

trict of Columbia, 117 D.W.L.R. 741 (1989), requiring a

prompt Fourth Amendment postseizure probable cause

hearing in civil forfeiture cases.

This unreversed decision not only resulted in a “ma-

terial alteration of the relationship of the parties” then

before the court; it accomplished a “material alteration

of the relationship of the parties” to any future property

seizures by the District of Columbia or its agents.

Thus, in the language of Justice O’ Connor, concurring

in Farrar v. Hobby, 506 U.S. 103, 121-122 (1992), we must

consider

the significance of the legal issue on which the

plaintiff claims to have prevailed. Garland, 489 US.

at 792 [State Teachers Assn. v. Garland Independent

School Dist., 489 U.S. 755 (1989)].

[Petitioners'] success might be considered ma-

terial if it also accomplished some public goal. . ..

Section 1988 . . . is a tool that ensures the vindica-

tion of important rights, even when large sums of

money are not at stake.

Unlike Farrar, the significance of the legal issue and "the

public purpose this litigation might have served" is evi-

dent here.

The District of Columbia was well aware of the “pub-

lic goal” of this litigation to civilize its forfeiture proce-

dures. It sought and obtained a certification for imme-

diate appeal under Sup.Ct.Civ.P. Rule 54(b) (similar to

F.R.Civ. P. 54(b)). But it never pursued the appeal, notic-

ing perhaps the trend strengthening the constitutional

rights of forfeiture victims later exemplified in such cases

as Austin v. United States, 509 U.S. 602 (1993), and United

States v. James Daniel Good Real Property, 510 U.S 43 (1993).

(2)

Related Claims Issue

The majority acknowledges (App. A. infra, 15) that

“notwithstanding the plaintiffs’ failure to establish that

they were ‘prevailing parties’ with respect to the Fourth

Amendment claim, we must remand for further consid-

eration of the possibility that plaintiffs could establish

such status with respect to certain other of their constitu-

tional claims.” Although, as there stated, the record is in-

deed incomplete on the Fifth Amendment Taking Clause

ruling (App. A. infra, 16), the final money settlements rep-

resented, for the most part, damages for temporary un-

constitutional detention of property subsequently re-

turned. Cf. Shelden v. United States, 7 F.3d 1022 (Fed. Cir.

1993), which plaintiffs’ counsel were litigating at the time.

But the remand fails to adequately address the trial

judge’s methodology in discounting counsels’ hours. The

issue was presented in plaintiffs’ initial brief (not the re-

ply brief as the slip opinion, App. A. infra, 14, n.18, sup-

poses). That initial brief quoted the following language

from Hensley v. Eckerhart, 461 U.S. 424, 440-441 (1983):

[T]he extent of a Plaintiff’s success is a crucial fac-

tor in determining the proper amount of an award

of attorney’s fees under 42 U.S.C. § 1988. Where

the plaiiitiff has failed to prevail on a claim that is

distinct in all respects from the successful claims,

the hours spent on the unsuccessful claim should

be excluded in considering the amount of a rea-

sonable fee. Where a lawsuit consists of related

claims, a Plaintiff who has won substantial relief

should not have his attorney’s fees reduced sim-

ply because the district court did not adopt each

contention raised.

The Seventh Circuit elaborated on this distinction in Mary

Beth G. v. City of Chicago, 723 F. 2d 1263, 1279 (7th Cir.

1983), as did the Eleventh Circuit in Norman v. Housing

Authority, 836 F. 2d 1292 (11th Cir. 1988). More recently

the Sixth Circuit in Wayne v. Village of Sebring, 35 F.3d 517,

532 (6th Cir. 1994), reversed a trial court decision some-

what like the lower court ruling here, saying:

Much of counsel's time will be devoted generally

to the litigation as a whole, making it difficult to

divide the hours expended on a claim by claim

basis. Such a lawsuit cannot be viewed as a series

of discrete claims.

The Seventh Circuit in Hutchison v. Amateur Electronic Sup-

ply, Inc., 42 F.3d 1037 (7th Cir.1994), reversed lower court

calculations similar to those involved here. There it was

pointed out

plaintiff's counsel is entitled to be heard on the

matter before such a significant reduction in hours

is made by the court.

Likewise here. It does not seem that plaintiffs’ counsel

was bound to anticipate “a significant reduction in hours”

would be made by the court.

In the affidavit supporting the fee applications, it is

explained that the hours set forth were expended “on suc-

cessful claims or interrelated facts or legal theories."

Hours were excluded if they were expended on “distinct,

unsuccessful claims." Both quotes are easily recognized

paraphrases of the language in Hensley v. Eckerhart, 461

U.S. 424, 440-41 (1983), which the trial court cited a num-

ber of times in its opinion, without, however, recogniz-

ing that he was doing the very thing that case forbids.

Entirely ignored by the trial court and the majority

decision is the basic reason the file is so thick and the

hours so numerous. It is set forth in Mr. Dowdey's affi-

davit (R.2321 at 2323):

an extraordinary amount of Ms. Grantland’s time

is traceable to the conduct of the District of Co-

lumbia. Here as in Henderson v. District of Colum-

bia, 493 A. 2d 982, 1002 (D. C. 1985),

The record discloses that the District of Co-

lumbia, et al. had to be brought kicking and

screaming to the bar of justice. Much of the

time spent by Henderson’s attorneys could

have been saved if the District of Columbia

et al. had conducted this litigation in a less

obstructionist manner.

This is not only the view of plaintiffs’ counsel. Judge

Wertheim characterized the strategy of the District of Co-

lumbia in these cases as “nitpicking plaintiffs’ counsel to

death.”

Thus, by failing to address the realities of why the file

is so thick and the hours so numerous, the court discour-

ages plaintiffs’ lawyers from accepting Civil Rights cases

and encourages defendants to mount obstructionist de-

fenses against the invasion of constitutional principles into

their sacred bureaucratic domain.

(3)

Enhancement for delay in payment

Although enhancement for contingency was rejected

by a plurality in Pennsylvania v. Delaware Valley Citizens’

Council, 478 U.S. 546, 566 (1986), an enhancement for de-

lay in payment was upheld. The Court recommended two

methods of measuring the enhancement— “either by bas-

ing the fee on current rates or by adjusting the fee based

on historic rates to reflect its present value.” In the in-

stant case, plaintiffs counsel neither sought nor obtained

acontingency enhancement. They did, however, seek and

obtain an enhancement for delay in payment by claim-

ing current rates in their 1992 fee petition. It is not true,

therefore, that plaintiffs failed to “make any argument in

their fee petition to the trial court regarding an enhance-

ment for delay in payment” as asserted at pp. 16-17 of

the slip opinion (App. A, infra). Since their fees have not

yet been paid, on remand they should be allowed an up-

ward adjustment to reflect their “current rates,” which

are $250 per hour for both Mr. Dowdey and Ms.

Grantland, or interest.

Failure to allow such an enhancement is a further dis-

couragement to those who would enforce Civil Rights and

an encouragement to those who would resist and delay

the day of their constitutional reckoning.

CONCLUSION

The Court should grant certiorari and direct a remand to

give effect to the remedial purpose of the Civil Rights At-

torneys’ Fee Award Act of 1976 by (1) repudiating the re-

strictive construction it imposes on the “prevailing party”

requirement of that Act; (2) recognizing that on remand

counsel are entitled to compensation for all hours ex-

pended on “related claims” excepting only those that are

“distinct in all respects from . . . successful claims;” and

(3) also recognizing that on remand counsels’ fee award

may include an enhancement for delay in payment in the

form of applying counsels’ current hourly rates, or inter-

est, updated to the time when payment is actually made.

LANDON GERALD DOWDEY

BRENDA GRANTLAND

} | — a =

oes.

Counsel to petitioners

Notice: This opinion is subject to formal revision before publication in

the Atlantic and Maryland Reporters. Users are requested to notify the

Clerk of the Court of any formal errors so that corrections may be made

before the bound volumes go to press.

District of Columbia Court of Appeals

Nos. 93-CV-835 & 93-CV-874

District or CotumpiA, APPELLANT AND Cross-APPELLEE,

TERRIE PATTERSON, ET AL., APPELLEES AND Cross-APPELLANTS//~’

Appeal from the Superior Court of the 4 apd

District of Columbia ae

(Hon. Rufus G. King III, Trial Judge)

(Argued February 23,1995 Decided November 30, 1995)

James C. McKay, Jr., Assistant Corporation Counsel, with

whom Vanessa Ruiz, Acting Corporation Counsel at the time

the brief was filed, and Charles L. Reischel, Deputy Corpora-

tion Counsel, was on the brief, for appellant and cross-appel-

lee.

Landon Gerald Dowdey, with whom Brenda Grantland was

on the brief, for appellees and cross-appellants.

Before Wacner, Chief Judge, and Terry and Sreapman, As-

sociate Judges.

Opinion for the Court by Associate Judge STEADMAN.

Dissenting opinion by Chief Judge Wacner at p. 17.

STEADMAN, Associate Judge: At issue in this appeal and

cross-appeal is the trial court’s award of attorney’s fees to the

plaintiffs in actions filed against the District of Columbia in-

voking 42 U.S.C. § 1983. The plaintiffs sought to recover

property seized by the District pursuant to statutes authoriz-

ing the forfeiture of property used in connection with certain

[2779]

drug activities. The actions, inter alia, challenged the consti-

tutionality of the statutes under both the Fourth and Fifth

Amendments. Collectively, the actions set forth thirteen dif-

ferent alleged constitutional violations presented by the stat-

utory scheme both on its face and as applied.

Only one of these constitutional claims was sustained by

the trial court. The sustained claim was that the claimants

had a post-seizure right to a probable cause determination on

request. However, only one of the claimants, Patterson, re-

quested such a hearing, at which the court found that in fact

probable cause existed for the seizure.

The District on the direct appeal argues that the trial court

erred, first, when it found appellant Patterson to be a prevail-

ing party, because she had only received an interim ruling

entitling her to a hearing at which she ultimately lost on the

merits, and, second, when it enhanced the attorney's fee

award based on the contingency fee arrangement between

plaintiffs and their attorneys. We agree with the District on

these two issues.

Plaintiffs’ in the cross-appeal first argue that the trial court

erred when it assumed that the plaintiffs had prevailed only

on their Fourth Amendment claims. Second, plaintiffs argue

that even if they had not prevailed on their other constitu-

tional claims, such claims were “related to” the successful

claims and therefore the trial court erred in reducing the fee

award to exclude hours spent on the unsuccessful claims.

Third, plaintiffs argue that they were entitled to an enhance-

ment for the extended delay in payment. The second and

third arguments were not properly preserved below for ap-

peal. With respect to the first argument, we are unable to

determine the degree, if any, to which the trial court's award

of fees encompassed not only the Fourth Amendment claims,

1 Because there is a cross-appeal, in order to avoid confusion, we

will refer to Patterson et al. as “plaintiffs” rather than “appellees.”

[2780]

on which the trial court erroneously concluded plaintiffs had

prevailed, but also other constitutional claims on which the

plaintiffs claim to have prevailed.

We remand for a redetermination of an award of attorney's

fees consistent with this opinion.

In 1987, Terrie Patterson filed a complaint which, after

several amendments, challenged the constitutionality of D.C.

Code § 33-552." In particular, the complaint, based in this

regard on 42 U.S.C. § 1983,° alleged that the statute violated

the Fourth, Fifth, Sixth and Eighth Amendments. She sought

to recover possession of her seized car pursuant to the terms

of the statute barring such seizures as against innocent own-

2 This provision makes certain items subject to forfeiture,

including “[aJll conveyances, including aircraft, vehicles or vessels,

which are used, or intended for use, to transport, or in any manner

facilitate the transportation” of any controlled substance or

property used to manufacture such substances, D.C. Code

§ 33-552(a)(4), and “[a]ll cash or currency which has been used, or

intended for use, in violation of this chapter,” id. § 33-552(a)(6).

Patterson's car had been seized because a person to whom she had

lent the car had used it to transport cocaine.

3 Section 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia, sub-

jects, or causes to be subjected, any citizen of the

United States or other person within the jurisdic-

tion thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper

proceeding for redress. For the purposes of this

section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to

be a statute of the District of Columbia.

42 U.S.C. § 1983 (1988).

(2781]

ers, and to recover damages for loss of use, property anges

and consequential damages.

Patterson later moved for a class certification, which was

denied. Several consolidated claims‘ and parties were added

to this action; they involved individual claims on behalf of the

other plaintif's regarding seizures of their cars under D.C.

Code § 33-552(a)(4), or seizures of cash under D.C. Code § 33-

552(a)(6).°

In an amended order dated January 6, 1989, Patterson v.

District of Columbia, 117 Daily Wash. L. Rptr. 741 (D.C.

Super. Ct. 1989), the trial court held that § 33-552 did not, on

its face, violate the Fifth Amendment’s Due Process Clause

or the Sixth or Eighth Amendments. The court noted, how-

ever, that the statute did not provide for a prompt post-sei-

zure procedure. In particular, once the property was seized,

no process was issued or filed during the time that Corpora-

tion Counsel decided whether to institute a forfeiture pro-

ceeding. If Corporation Counsel decided to pursue forfeiture,

a libel of information was filed in Superior Court, and the case

proceeded under the Superior Court Rules of Civil Procedure.

Hence, property could possibly be held for up to two years

without a judicial hearing in which an owner could present

defenses, such as a lack of knowledge of the use of the prop-

erty for an illegal purpose. See D.C. Code § 33-552(a)(4).° Ac-

4 These actions included the forfeiture actions brought by the

District against the property of some of the plaintiffs in the

Patterson suit. By an order of February 24, 1989, all the forfeiture

actions were severed from the claims brought in the Patterson suit

against the District.

5 Cash seizures based on the gambling laws, D.C. Code § 22-

1505(c), and the validity of the property clerk statute, D.C. Code

§ 4-153, were also challenged. No issues are raised on appeal with

respect to those claims.

6 That subsection in general excludes forfeiture of a conveyance

if the illegal action was committed without the knowledge or

consent of the owner or secured party.

[2782]

cordingly, the trial court held that under the Fourth Amend-

ment, “claimants from whom property has been seized have a

right to a probable cause determination, post-seizure at their

request.” On May 12, 1989, Patterson moved for such a hear-

ing.’ A hearing was held on December 21, 1989, at which the

court found that there was indeed probable cause for the

seizure.

The court order of January 6, 1989, however, did not ad-

dress the claims that the procedures employed did not pro-

vide adequate pre- and post-seizure notices assertedly re-

quired by the Fifth Amendment. These claims had been the

subject of a summary judgment motion filed by plaintiffs Mor-

ris Hinton and Lennox Layne, which was never acted upon.

In the spring of 1992, a settlement was reached respecting

these claims of inadequate notice.®

In November of 1992, the trial court issued its first order

relating to attorney's fees.’ The order held that the plaintiffs

were prevailing parties in the litigation, and thus entitled to

fees under 42 U.S.C. § 1988 (1988 & Supp. V 1993).” The

court held that the plaintiffs had prevailed on their Fourth

Amendment claims because the “declaratory judgment re-

quiring a probable cause hearing prior to forfeiture was a

judgment in petitioners’ favor and affected the conduct be-

tween these parties.” Furthermore, the court, citing District

of Columbia v. Jerry M., 580 A.2d 1270 (D.C. 1990), held that

7 Apparently, none of the other plaintiffs requested a probable

cause determination.

8 It is not clear from the present record whether Hinton and

Layne alone or other plaintiffs as well were parties to the

settlement.

9 No challenge is made to the proposition that the litigation by

then was final in all respects.

10 The details of that statutory provision providing for the award

of attorney's fees in § 1983 actions are set forth in Part II of this

opinion.

[2783]

the parties who had settled their claims were also prevailing

parties. Therefore, counsel were ordered to submit the fees

and costs “incurred as a result of litigating the constitutional

portions of plaintiffs’ cases.” The plaintiffs’ subsequent sub-

mission of attorney's fees sought $76,290" for Brenda Grant-

land (610.3 hours at $125 per hour), and $22,540 for Landon

Dowdey (128.8 hours at $175 per hour).”

In an order dated May 19, 1993, the trial court awarded

Grantland $26,623.03 and Dowdey $7,513 in fees. The court

began with the total number of hours claimed for each attor-

ney and then reduced that figure by one-half “to more accu-

rately reflect the hours spent on the Fourth Amendment is-

sues,” and to exclude those hours spent on other aspects of

the litigation. The court recited the experience of each of the

attorneys, and found their rates “to be within the range

charged by others performing similar services.” Therefore,

the court arrived at “lodestar” figures by multiplying half of

the hours claimed by the hourly rate: $38,145 for Grantland

and $11,270 for Dowdey.

The court noted that the hourly rates in the fee petition

were the attorneys’ rates for non-contingent matters; how-

ever, “[bjoth fee arrangements were in fact contingent [and]

this is a factor to consider in raising or lowering the lodestar

factor.” The court held that a “pro rata reduction [based on

the ratio of one successful claim to the total thirteen claims

brought") of the lodestar [would be] wholly inappropriate” in

light of the “uncertainty of compensation” because of the con-

tingency arrangement. The court then found that “a partial

reduction to reflect the proportion of favorable outcome of

ll Grantland’s submission included an additional $1,193.03 in

expenses.

12 Grantland and Dowdey represented all of the plaintiffs in the

consolidated action, and the attorney's fee award was in a lump sum.

13 The trial court was here apparently amassing all issues raised

by the plaintiffs collectively.

[2784]

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4

d

the total litigation is justified, and the court determines that

factor to be one-third.” The court also allowed all the claimed

expenses of Grantland, which totalled $1,193.03. Accordingly,

the court ordered an award of $25,623.03 to Grantland and

$7,513 to Dowdey.

TI.

We first review the federal statutory scheme at issue here,

upon which any right to attorney’s fees must be based. See

Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240,

257 (1975) (“absent statute or enforceable contract, litigants

pay their own attorneys’ fees”). Under 42 U.S.C. § 1988, “lijn

any action or proceeding to enforce a provision of section[]...

1983 . . . the court, in its discretion, may allow the prevailing

party ...a reasonable attorney's fee as part of the costs.” 42

U.S.C. § 1988 (1988 & Supp. V 1993)." In awarding the fee,

the trial court must first determine whether the claimant is a

“prevailing party” within the meaning of the statute. See

Hewitt v. Helms, 482 U.S. 755, 759 (1987). If the claimant

qualifies as a “prevailing party,” the trial court must next

arrive at a “reasonable fee.” Henderson v. District of Colum-

bia, 493 A.2d 982, 999 (D.C. 1985). “The most useful starting

point for determining the amount of a reasonable fee is the

number of hours reasonably expended on the litigation multi-

plied by a reasonable hourly rate.” Hensley v. Eckerhart, 461

14 The Supreme Court has routinely held that cases interpreting

a fee shifting provision of one federal statute will apply equally to

similar provisions. See, ¢.g., City of Burlington v. Dague, 112 S. Ct.

2638, 2641 (1992) (Safe Water Drinking Act and the Clean Water

Act fee provisions are “similar to that of many other federal

fee-shifting statutes,” including 42 U.S.C. § 1988; “case law

construing what is a ‘reasonable’ fee applies uniformly to all of

them"); Pennsylvania v. Delaware Valley Citizens’ Council for Clean

Air, 478 U.S. 546, 560 (1986) (§ 1988 and fee shifting provision of

the Clean Air Act to be interpreted similarly). Supreme Court

interpretations of general federal statutes are, of course, binding on

all courts, state or federal. See, ¢.9., United States v. Gilbert

Associates, 345 U.S. 361, 363 (1953).

[2785]

8

U.S. 424, 433 (1983). This amount is often referred to as the

_ “lodestar” amount. Henderson, supra, 493 A.2d at 999.

In arriving at the total hours reasonably expended, “hours

that are ‘excessive, redundant or otherwise unnecessary’

must be excluded.” Jd. at 999 (quoting Hensley, 461 U.S. at

434). The reasonable rate is “to be calculated according to the

prevailing rates in the relevant community.” Jd. Once the

court calculates the lodestar, this sum is “presumed to be the

reasonable fee’ to which counsel is entitled.” Delaware Valley,

supra note 14, 478 U.S. at 564 (quoting Blum v. Stenson, 465

U.S. 886, 879 (1984)) (emphasis omitted). Upward adjust-

ments to the lodestar are permissible “only in certain ‘rare’

and ‘exceptional’ cases, supported by both ‘specific evidence’

on the record and detailed findings by the lower courts,” id.

at 565 (quoting Blum, 465 U.S. at 898-901), and only to the

extent that these factors were not already considered in cal-

culating the lodestar amount, see Blum, 465 U.S. at 898-900.

We turn now to the application of these principles to the case

before us.

Ii.

We turn first to the two principal arguments of the District

addressing alleged trial court errors that caused the fee

award to be too high.”

A.

First, the District argues that Patterson was not a “prevail-

ing party” within the meaning of section 1988, and thus was

not entitled to an award of any attorney's fees at all under

that provision. The Supreme Court has, in several cases, de-

fined who qualifies as a “prevailing party” under § 1988. In

Hanrahan v. Hampton, the Court reviewed the history of

15 The District also argues that the fees were improperly

documented. In response to the same argument before it, the trial

court did not question the adequacy of the documentation, and we

see no reason to disturb the trial court's action in that regard.

[2786]

sii AS aA Rr AURRey eS RN ne VARS Sn

§ 1988, and noted that Congress contemplated that success on

some kinds of interim relief might warrant an award of fees.

446 U.S. 754, 756-57 (1980) (per curiam) (“a person may in

some circumstances be a ‘prevailing party’ without having

obtained a favorable ‘final judgment following a full trial on

the merits.” (quoting H.R. Rep. No. 94-1558, p.7 (1976))).

However, the Court cautioned that fees for interlocutory re-

lief was limited: “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.”

Id. at 757.

Accordingly, in Hewitt, supra, the Court held that en inter-

locutory ruling holding that the plaintiff's complaint should

not have been dismissed for failure to state a claim was not a

sufficient legal victory to establish prevailing party status for

the plaintiff. 482 U.S. at 760. The Court explained:

In all civil litigation, the judicial decree is not the

end but the means. At the end of the rainbow lies

not a judgment, but some action (or cessation of

action) by the defendant that the judgment pro-

duces — the payment of damages, or some specific

performance, or the termination of some conduct.

Redress is sought through the court, but from the

defendant. This is no less true of a declaratory judg-

ment suit than of any other action. The real value

of the judicial pronouncement — what makes it a

proper judicial resolution of a “case or controversy”

rather than an advisory opinion — is in the set*ling-.

of some dispute which affects the behavior of the de-

fendant towards the plaintiff.

Id. at 761 (emphasis in original). Accordingly, a mere “favor-

able judicial statement of law in the course of litigation” does

not render a plaintiff a prevailing party in an action which is

otherwise decided against him. Jd. at 763. The Court held that

the plaintiff could not be a prevailing party even if voluntary

[2787]

10

changes in prison regulations made by the defendant had

been a result of the lawsuit, because the plaintiff had been

released from prison by the time the changes were made,

even though the plaintiff had subsequently been once again

imprisoned. Jd. at 763-64 (“Although he has subsequently

been returned to prison, and is presumably now benefiting

from the new procedures... that fortuity can hardly render

him, retroactively, a ‘prevailing party’ in this lawsuit”); see

also Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam)

(Court denied an award of attorney’s fees in a suit brought by

two prisoners alleging the unconstitutionality of a prison reg-

ulation prohibiting prisoners from subscribing to magazines

when one prisoner had died and the other had been released

before the district court had ruled in their favor).

In Texas State Teachers Ass'n v. Garland Indep. Sch. Dist.,

the Court once again emphasized that “[a] prevailing party

must be one who has succeeded on any significant claim af-

fording it some of the relief sought, either pendente lite or at

the conclusion of the litigation.” 489 U.S. 782, 791 (1989). The

Court noted that “[i]f the plaintiff has succeeded on ‘any sig-

nificant issue in litigation which achieve[d] some of the bene-

fit the parties sought in bringing suit,’ the plaintiff has

crossed the threshold to a fee award of some kind.” Jd. at

791-92 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st

Cir. 1978)). With respect to 2 partial success, the court held

that where the party had obtained a “materia! alteration of

the legal relationship of the parties,” the “degree of the

plaintiffs overall success goes to the reasonableness of the

award ... not to the availability of a fee award vel non.” Id.

at 792-93.

More recently, in Farrar v. Hobby, 113 S. Ct. 566 (1992), the

Supreme Court summarized:

[T]o qualify as a prevailing party, a civil rights

plaintiff must obtain at least some relief on the mer-

its of his claim. . . . In short, a plaintiff “prevails”

when actual relief on the merits of his claim mate-

[2788]

pint iad it

11

rially alters the legal relationship between parties

by modifying the defendant’s behavior in a way that

directly benefits the plaintiff.

Id. at 573.

This court has also addressed the prevailing party issue. In

Henderson, supra, this court held that a party is prevailing “if

he has succeeded on any of the significant issues in the litiga-

tion which achieved some of the benefits sought by bringing

the suit.” 493 A.2d at 999. In District of Columbia v. Jerry M.,

this court noted that 2 party is prevailing “if he or she suc-

ceeds in obtaining relief by way of a settlement agreement or

consent decree.” 580 A.2d 1270, 1274 (D.C. 1990); see also

Maher v. Gagne, 448 U.S. 122, 129 (1980).

In analyzing the situation here, it is important to bear in

mind what Patterson’s law suit ultimately sought; viz., the

return of the car that had been seized under the authority of

D.C. Code § 33-552 and damages for its detention. The consti-

tutional claims were only mechanisms to that end. To be a

prevailing party, Patterson had to demonstrate that the con-

stitutional infirmity that she established resulted in some tan-

gible benefit to her with respect to the litigation. The only

constitutional infirmity that the trial court found was the

District's failure to provide her a post-seizure hearing to es-

tablish probable cause. The fata! flaw in her argument, we

think, is that when she got the hearing she sought, the trial

court found that probable cause indeed did exist, and thus she

obtained no benefit whatever from her proof of a constitu-

tional violation.

Plaintiffs invoke the trial court’s view expressed in the

order allowing attorney’s fees that the “declaratory judgment

requiring a probable cause hearing prior to forfeiture was a

judgment in petitioners’ favor and affected the conduct be-

tween these parties.” But that order was an interim legal

ruling that Patterson, like other claimants, had a constitu-

tional right to a probable cause determination post-seizure on

request. Each party still had to pursue its own further specific

[2789]

12

challenge because of “the particular nature of the determina-

tion in each case.” Class certification was expressly denied.

See Rhodes, supra, 488 U.S. at 4 (“The lawsuit was not

brought as a class action, but by two plaintiffs.”) No injunc-

tion was issued. See Hewitt, supra, 482 U.S. at 760.

Patterson argues that in any event, the trial court ruling

“affect[ed] the behavior of the defendant towards the plain-

tiff’ and constituted a “material alteration of the legal rela-

tionship of the parties,” in that she obtained the probable

cause hearing that she wished. We think this misconstrues

the meaning of those phrases in Hewitt and Texas State Teach-

ers. What plaintiff obtained was specific action with respect

to this particular litigation, a normal outcome of an interim

trial court ruling. To constitute the change of behavior or

legal relationship necessary to make plaintiff a prevailing

party, the litigation would have to effect a future course of

conduct toward the particular plaintiff apart from the litiga-

tion itself. As the Court explained in Farrar, what is required

is an outcome that “directly benefits the plaintiff.” The possi-

bility that a plaintiffs property might once again be im-

pounded cannot suffice any more than it did in Hewitt.

In sum, we think that Patterson's failure to achieve any

tangible benefit as a result of the trial court’s ruling on the

constitutional issue negates the status of “prevailing party”

for purposes of an attorney's fee award.”

Second, the District argues that, in any event, the trial

court improperly enhanced the award based on the contingent

16 A fortiori, the other plaintiffs, who did not even seek a

probable cause hearing, see note 7, supra, must lack that status.

The District on appeal contends that the attorney's fee award

applied only to Patterson. Even a superficial reading of the

attorney's fees petition, together with the trial court's order,

demonstrates that the award applied to all the plaintiffs. In

particular, Grantland’s petition specifically mentions eight other

plaintiffs, in addition to Patterson.

[2790]

i bla Sirti stoi en

13

fee arrangement under which the attorneys represented the

plaintiffs.” The District relies on City of Burlington v. Dague,

112 S. Ct. 2638 (1992), for the proposition that an enhance-

ment for a contingency arrangement is not permitted in an

attorney’s fees award under section 1988. In Burlington, the

Court addressed the issue of the propriety of an enhancement

of the lodestar amount to reflect a contingent fee arrange-

ment. The Court first noted “[w]e have established a ‘strong

presumption’ that the lodestar represents the ‘reasonable

fee.” Id. at 2641. Accordingly, “the fee applicant who seeks

more than that [has] the burden of showing that ‘such adjust-

ment is necessary to the determination of a reasonable fee.”

Id. (quoting Blum, supra, 465 U.S. at 898) (emphasis added in

Burlington).

The Court held that the contingent nature of a fee arrange-

ment was an improper consideration in determining the lode-

star amount:

The risk of loss in a particular case (and, therefore,

the attorney’s contingent risk) is the product of two

factors: (1) the legal and factual merits of the claim,

and (2) the difficulty of establishing those merits.

The second factor, however, is ordinarily reflected

in the lodestar — either in the higher number of

hours expended to overcome the difficulty, or in the

higher hourly rate of the attorney skilled and expe-

rienced enough to do so. . . . The first factor... is

not reflected in the lodestar, but there are good

reasons why it should play no part in the calculation

of the award. It is, of course, a factor that always

exists (no claim has a 100% chance of success), so

17 We address this issue, notwithstanding the holding with

respect to the absence of “prevailing party” status on the Fourth

Amendment claim, because, as will be seen, plaintiffs prevail in

part on their cross-appeal, requiring further consideration of the

attorney’s fee issue.

[2791]

14

that computation of the lodestar would never end

the court's inquiry in contingent-fee cases.

Id. at 2641.

Accordingly, the Court held “that enhancement for contin-

gency is not permitted under the fee-shifting statutes at

issue.” Jd. at 2643-44. Because we are interpreting a federal

statute, Burlington is controlling.

In the case sub judice, the trial court reasoned that the

contingency nature of the fee agreement was “a factor to

consider in raising or lowering the lodestar [amount], but

[wa]s not a basis for setting the rate.” Because of the contin-

gency arrangement, the trial court found that a pro rata re-

duction was inappropriate, and instead reduced the fee by

one-third. Plaintiffs therefore argue that the trial court did

not in fact award any enhancement, but rather declined to

further reduce the award because of the contingency arrange-

ment. We discern no difference between awarding an en-

hancement and declining to further decrease an award if such

a reduction would otherwise be warranted; in either case, the

contingent nature of the fee arrangement is treated as a fac-

tor, now barred by Burlington.

IV.

We turn next to the principal arguments of the plaintiffs

addressing alleged trial. court errors that caused the fee

award to be too low.” As will be seen, we conclude that

18 In their reply brief as appellants, plaintiffs also argue that the

trial court erred when it reduced the fee twice based in effect on

the same factor; viz., the results obtained. However, an argument

first raised in a reply brief comes too late for appellate

consideration. See Bingham v. Goldberg, Marchesano, Kohlman, Inc.,

637 A.2d 81, 95 n.34 (D.C. 1994) (“This [new] issue should have been

raised in appellant's initial brief, and it is not properly included in

the reply brief.”); Wilson v. O'Leary, 895 F.2d 378, 384 (7th Cir.

1990) (“All arguments for reversal must appear in the opening brief,

so that the appellee may address them.”).

[2792]

—S ee ee ee ee, ee a a

15

notwithstanding the plaintiffs’ failure to establish that they

were “prevailing parties” with respect to the Fourth Amend-

ment claim, we must remand for further consideration of the

possibility that plaintiffs could establish such status with re-

spect to certain other of their constitutional claims.

A.

Plaintiffs argue that the trial court erred in assuming that

the Fourth Amendment issue, that of a right to a post-seizure

probable cause hearing, was the only claim on which plaintiffs

prevailed. They direct our attention to two other areas.

First, they assert that they were prevailing parties on

claims decided in 1987 under the Takings Clause of the Fifth

Amendment. They cite to two places in the record as support

for this assertion. However, at these cites we can find no

mention of a takings issue, much less an indication of a suc-

cessful Fifth Amendment claim. The first cite is an order

consolidating several cases, granting the District's motion for

an enlargement of time, and scheduling oral arguments. The

second cite is to the second page of an order granting an

enlargement of time.

The District noticed this problem, and argued that this

argument must therefore fail under Cobb v. Standard Drug

Co., 453 A.2d 110, 111 (D.C. 1982), placing responsibility upon

the party claiming trial court error to provide an adequate

record on appeal to demonstrate error. Plaintiffs ignored this

issue in their reply brief, which was filed about two months

after the District’s. We agree with the District that under

Cobb, this argument cannot be further considered on appeal.

“Appellate review is limited to matters appearing in the re-

cord before us, and we cannot base our review of errors upon

statements of counsel which are unsupported by that record.”

D.C. Transit System, Inc. v. Milton, 250 A.2d 549, 550 (D.C.

1969); see also D.C. App. R. 28(e) (references in brief to parts

of record must refer to pages where such parts appear).

{2793}

16

Second, plaintiffs argue that they are prevailing parties

with respect to the Fifth Amendment claims that were settled

in the spring of 1992, and therefore are entitled to attorney's

fees at least for those claims. As we noted in Jerry M., supra,

a plaintiff who “succeeds in obtaining relief by way of a set-

tlement agreement or consent decree” may be a prevailing

party.” 580 A.2d at 1274; see also Maher, supra, 448 U.S. at

129. The fee petition for Grantland specifically mentions the

clients who settled their Fifth Amendment claims. In the

order awarding fees, the trial court rejected a claim by the

District that the parties who settled their claims were not

prevailing parties. However, in the very next sentence, the

court makes the contradictory statement that fees are recov-

erable only with respect to the efforts to obtain a probable

cause hearing, which would exclude recovery for any of the

settled claims. We are thus unable to tell from the record

whether the fees were in fact awarded in part for the settled

claims and if so, how much of the fees should be allocated to

those claims. We must remand to allow the trial court to

address this matter further.

Plaintiffs also argue that the trial court erred in denying

fees on the unsuccessful constitutional claims, because these

claims were related to the successful claims, and that any fee

awarded should be enhanced because of the delay in payment.

However, these arguments were never raised before the trial

court. In the petition for fees, plaintiffs stated that they

sought an award for time spent on the Fourth Amendment

and the Fifth Amendment settled claims only. Nor did the

plaintiffs make any argument in their fee petition to the trial

19 It is presumably possible that a settlement may be so meager

compared to the value of a plaintiff's claim that the plaintiff may not

have “prevailed.” In other words, a governmental body may decide

to settle a suit to avoid the cost of litigation, even if it believes that

the plaintiff would lose at trial.

[2794]

—

17

court regarding an enhancement for a delay in payment. This

litigation commenced in 1987 and the fee petition was filed in

late 1992. Therefore, the plaintiffs had an opportunity to raise

any arguments about a delay in payment to the trial court.

Following standard appellate practice, we decline to address

either of these issues raised for the first time on appeal. See

Hessey v. Burden, 615 A.2d 562, 581 (D.C. 1992).”

V.

In sum, we hold on the District's appeal that the trial court

erred when it found plaintiffs to be prevailing parties and

when it awarded an enhancement for contingency. The

attorney’s fee award is thus vacated to the extent that it

awards attorney's fees for efforts expended on the Fourth

Amendment claim. We reject plaintiffs’ arguments on the

cross-appeal with the exception of a possible award of

attorney's fees to cover the settled claims. We remand for

further consideration of the attorney's fee award in that re-

spect.

So ordered.

Wacner, Chief Judge, dissenting: In my view, plaintiff suc-

ceeded on a “significant issue in litigation which achieve[d] -

some of the benefit [she] sought in bringing suit; therefore,

she is a prevailing party within the meaning of the Civil

Rights Attorney's Fees Award Act of 1976, 90 Stat. 2641, 42

U.S.C. § 1988 and may be awarded attorney fees thereunder.

Texas Teachers Ass'n. v. Garland School Dist., 489 U.S. 782,

791-92 (1989) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-

79 (1st Cir. 1978)); accord, Hensley v. Eckerhart, 461 U.S. 424,

433 (1983). There is no disagreement among the panel about

20 For the same reason, we do not address the District's

argument, based on Elmore v. Shuler, 252 U.S. App. D.C. 45, 47,

787 F.2d 601, 603 (1986), that the failure to explicitly reserve a

claim for attorney’s fees in the settlement bars any recovery.

[2795]

18

the general rule which governs whether a party is entitled to

attorney's fees under § 1988. What seems to divide us is the

difficult problem of determining when a party fairly may be

said to have prevailed on a claim for declaratory judgment for

purposes of shifting counsel fees to the opposing party under

the controlling precedents. Although this is a close question,

plaintiffs crossed that threshold, in my opinion.

Plaintiff filed a complaint for a declaratory judgment that

she was entitled to a prompt hearing to establish probable

cause for the seizure of her property, among other things,

when the government takes it pursuant to D.C. Code § 33-552

(1988).! The trial court observed that from the time of the

seizure until the filing of a libel under § 33-552, “there was no

reasonably accessible procedure for protecting against unrea-

sonable seizures.” Not until after plaintiffs had filed these

actions did the government initiate proceedings under § 33-

552. The government took the position that plaintiff was af-

forded adequate protection by the opportunity for a hearing

once it initiated a libel, which could be brought within a one-

year statute of limitations period.” The trial court determined

that “some method must be provided for determining

whether probable cause exists to retain property during a

period when there is otherwise no involvement by any court.”

The court ruled that :

1 Plaintiff Patterson’s automobile was seized when a man to

whom she had loaned it was arrested on drug charges. The owner

claimed a lack of knowledge or involvement in any crime. See D.C.

Code § 33-552 (a)(4)(B) (property exempt from forfeiture where

illicit use is without owner's knowledge or consent).

2 This court has held that the one year statute of limitations

under D.C. Code § 12-305 (5) (1995) for libel actions for forfeiture

under § 22-1505 (c) (1989) is tolled “during the time period between

seizure of the property and judgment in the underlying criminal

prosecution.” Ward v. District of Columbia, 494 A.2d 666, 670 (D.C.

1985). Assuming application of this tolling rule to seizures under

§ 33-552, such a period portends an inordinately lengthy delay with-

out any hearing for any innocent owner whose vehicle is seized.

[2796]

eee aaaea aera nmeastan aaa eee

19

any particular seizure and detention of property are

subject to the Fourth Amendment requirement of

reasonableness as determined in a nonadversary ju-

dicial review. A warrant need not be obtained prior

to the seizure of property, but at a minimum, claim-

ants from whom property has been seized have a

right to a probable cause determination, postseiz-

ure at their request.

Pursuant to the court’s ruling, Patterson requested and ob-

tained such a hearing.

On these facts, plaintiff should be considered a prevailing

party for attorney fee purposes. Plaintiff obtained some of

the relief she sought, specifically, a post-seizure probable

cause hearing where such a remedy previously had not been

recognized, Unlike the party in Hewitt v. Helms, 482 U.S. 755

(1987), where prevailing party status was rejected, plaintiff

successfully pursued declaratory judgment relief which re-

quired the government to make an immediate showing of

probable cause instead of awaiting the outcome of the libel

action which it filed.* In my view, the trial court’s ruling on

the request for declaratory judgment was more than a mere

interlocutory ruling on a pendente lite motion respecting

whether a party has stated a constitutional claim, which has

been rejected as a basis for recovery of attorney fees under

3 It is not clear from the record whether the government filed

the libel in response to plaintiff's lawsuit, although the libel was the

later-filed action. Such circumstances may form the basis for finding

a plaintiff to be a prevailing party. See Hewitt, supra, 482 U.S. at

761. In Hewitt, the Supreme Court stated “in a declaratory

judgment action: if the defendant, under pressure of the lawsuit,

alters his conduct (or threatened conduct) towards the plaintiff that

was the basis for the suit, the plaintiff will have prevailed.” Jd.

Here, absent plaintiff's claim for declaratory judgment and for a

post-seizure probable cause hearing, the government could have

retained plaintiff's property for several years without any showing

of probable cause to entitlement or any opportunity for challenge

until the libel action was heard.

[2797]

20

§ 1988. See id. at 760. Not only did plaintiff state a constitu-

tional claim, but she was successful in having it disposed of in

her favor. The fact that she did not ultimately prevail on her

request for return of the car is not dispositive. Such a require-

ment would seem to sanction the “central issue test” which

the Supreme Court rejected in Texas Teachers Ass'n, supra,

489 U.S. at 792. In Texas Teachers Ass'n, the Court pointed

out that “the degree of the plaintiff's success in relation to the

other goals of the lawsuit is a factor critical to the determina-

tion of the size of a reasonable fee, not to eligibility for a fee

award at all.” Jd. at 790. Pertinent to our review, the court

describes a prevailing party as “one who has succeeded on any

significant claim affording it some of the relief sought, either

pendente lite or at the conclusion of the litigation.“ Jd at 791.

In light of the recognition that pendente lite relief may form a

basis for an award of attorney fees under § 1988, I cannot

agree with the majority that in order to recover, the favorable

ruling must “effect a future course of conduct toward the

plaintiff apart from the litigation itself.” (Emphasis added.)

In this case, there was a material alteration in the legal

relationship between the parties as a result of the disposition

of the declaratory action which entitles plaintiff to prevailing

party status. Absent that declaration, the government was at

liberty to simply retain appellant’s property without any

showing of probable cause and to defer any opportunity for

the asserted innocent owner to challenge its claim until such

4 It does not appear that the Supreme Court in Farrar v. Hobby,

113 S. Ct. 566 (1992), in reviewing its prior opinions, sought to effect

any change in its precedents defining prevailing party for purposes

of an award of attorney fees under § 1988. In Farrar, the issue

before the Court was whether a plaintiff who wins damages in a suit

for violation of his civil rights was a prevailing party for purposes

of § 1988. The Court held he was because “[a] judgment for

damages in any amount, whether compensatory or nominal,

modifies the defendant's behavior for the plaintiff's benefit by

forcing the defendant to pay an amount of money he otherwise

would not pay.” Jd. at 574.

[2798]

feel S

21

time as it chose to file the libel and have the matter litigated.

In securing the right to a post-seizure hearing by way of

declaratory judgment, plaintiff “‘succeed[ed] on [a] significant

issue in litigation which achieve{d] some of the benefit [she]

sought in bringing suit.” See Hensley, supra, 461 U.S. at 433

(quoting Nadeau, supra, 581 F.2d at 278-79). For these rea-

sons, in my opinion, she is a prevailing party within the mean-

ing of § 1988; therefore, I respectfully dissent.

[2799]