Awards of Attorneys’ Fees by Federal Courts and Federal Agencies
Congressional research reportOct 22, 2009
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Awards of Attorneys’ Fees by Federal Courts
and Federal Agencies
-name redactedLegislative Attorney
October 22, 2009
Congressional Research Service
7-....
www.crs.gov
94-970
CRS Report for Congress
Prepared for Members and Committees of Congress
Awards of Attorneys’ Fees by Federal Courts and Federal Agencies
Summary
In the United States, the general rule, which derives from common law, is that each side in a legal
proceeding pays for its own attorney. There are many exceptions, however, in which federal
courts, and occasionally federal agencies, may order the losing party to pay the attorneys’ fees of
the prevailing party. The major common law exception authorizes federal courts (not agencies) to
order a losing party that acts in bad faith to pay the prevailing party’s fees.
There are also roughly two hundred statutory exceptions, which were generally enacted to
encourage private litigation to implement public policy. Awards of attorneys’ fees are often
designed to help to equalize contests between private individual plaintiffs and corporate or
governmental defendants. Thus, attorneys’ fees provisions are most often found in civil rights,
environmental protection, and consumer protection statutes.
In addition, the Equal Access to Justice Act (EAJA) makes the United States liable for attorneys’
fees of up to $125 per hour in many court cases and administrative proceedings that it loses (and
some that it wins) and fails to prove that its position was substantially justified. EAJA does not
apply in tax cases, but a similar statute, 26 U.S.C. § 7430, does.
Most Supreme Court decisions involving attorneys’ fees have interpreted civil rights statutes, and
this report focuses on these statutes. It also discusses awards of costs other than attorneys’ fees in
federal courts, how courts compute the amount of attorneys’ fees to be awarded, statutory
limitations on attorneys’ fees, and other subjects. In addition, it sets forth the language of all
federal attorneys’ fees provisions, and includes a bibliography of congressional committee reports
and hearings concerning attorneys’ fees.
In 1997, Congress enacted a statute allowing awards of attorneys’ fees to some prevailing
criminal defendants.
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Awards of Attorneys’ Fees by Federal Courts and Federal Agencies
Contents
I. Introduction: The American Rule and Its Exceptions ................................................................1
II. Common Law Exceptions to the American Rule .....................................................................2
Common Benefit Doctrine ....................................................................................................2
Bad Faith Exception..............................................................................................................3
Private Attorney General Doctrine.........................................................................................4
III. The Equal Access to Justice Act.............................................................................................5
IV. The Dual Standard: Prevailing Plaintiffs and Prevailing Defendants ..................................... 10
V. The Concept of Prevailing Party............................................................................................ 12
VI. Awards of Attorneys’ Fees Incurred in Administrative Proceedings ...................................... 17
Awards of Attorneys’ Fees by Administrative Agencies ....................................................... 20
VII. Awards of Attorneys’ Fees in Civil Rights Cases ................................................................ 22
Civil Rights Act of 1964, Title II: Public Accommodations.................................................. 22
Civil Rights Act of 1964, Title III: Public Facilities ............................................................. 22
Civil Rights Act of 1964, Title VII: Equal Employment Opportunities ................................. 23
Fair Housing Act................................................................................................................. 24
Fair Labor Standards Act..................................................................................................... 24
Age Discrimination in Employment Act of 1967 ................................................................. 24
Equal Credit Opportunity Act.............................................................................................. 25
Voting Rights Act of 1965 ................................................................................................... 25
Civil Service Reform Act of 1978 ....................................................................................... 26
Age Discrimination Act of 1975 .......................................................................................... 27
Civil Rights of Institutionalized Persons Act........................................................................ 27
Rehabilitation Act of 1973................................................................................................... 28
Individuals with Disabilities Education Act ......................................................................... 28
Americans with Disabilities Act of 1990.............................................................................. 29
Civil Rights Attorney’s Fees Awards Act of 1976 ................................................................ 30
42 U.S.C. § 1981........................................................................................................... 31
42 U.S.C. § 1981a......................................................................................................... 31
42 U.S.C. § 1982........................................................................................................... 31
42 U.S.C. § 1983........................................................................................................... 31
42 U.S.C. § 1985........................................................................................................... 33
42 U.S.C. § 1986........................................................................................................... 33
Title IX of P.L. 92-318 .................................................................................................. 33
Religious Freedom Restoration Act of 1993 .................................................................. 34
The Religious Land Use and Institutionalized Persons Act of 2000................................ 34
Civil Rights Act of 1964, Title VI: Federally Assisted Programs .................................... 35
Violence Against Women Act of 1994 ........................................................................... 35
VIII. Awards of Attorneys’ Fees in Tax Cases ............................................................................ 35
IX. Awards of Attorneys’ Fees Against the States....................................................................... 37
Awards of Attorneys’ Fees Against State Judges .................................................................. 40
X. Awards of Costs in Federal Courts ........................................................................................ 41
Awards of Costs for and Against the United States............................................................... 43
XI. Determining a Reasonable Attorneys’ Fee ........................................................................... 43
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Awards of Attorneys’ Fees by Federal Courts and Federal Agencies
XII. Rule 68 of the Federal Rules of Civil Procedure................................................................. 49
XIII. Negotiated Fee Waivers .................................................................................................... 51
XIV. Statutory Limitations on Attorneys’ Fees ........................................................................... 52
XV. Funding of Participants in Federal Agency Proceedings...................................................... 53
XVI. Some Arguments for and Against the American Rule........................................................ 55
XVII. Awards of Attorneys’ Fees to Prevailing Criminal Defendants.......................................... 56
Federal Statutes That Authorize Awards of Attorneys’ Fees........................................................ 57
Bibliography of Congressional Publications ............................................................................ 117
Committee Prints and Reports ........................................................................................... 117
Committee Hearings ......................................................................................................... 119
Contacts
Author Contact Information .................................................................................................... 121
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Awards of Attorneys’ Fees by Federal Courts and Federal Agencies
I. Introduction: The American Rule and
Its Exceptions
“In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable
attorneys’ fee from the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240,
247 (1975). This is known as the “American rule” (as opposed to the English rule, which
routinely permits fee-shifting) and derives from court-made law. It has, however, numerous
statutory exceptions (listed at the back of this report), some if not most of which Congress
enacted in order to encourage private litigation to implement public policy. Id. at 263. Under
these exceptions, a federal court (and sometimes a federal agency) may order the losing party to a
lawsuit to pay the winning party’s attorneys’ fees. Although “attorney’s fees generally are not a
recoverable cost of litigation ‘absent explicit congressional authorization,’ ... [t]he absence of
specific reference to attorney’s fees is not dispositive if the statute otherwise evinces an intent to
provide for such fees.”1
Fee-shifting has been proposed, not only to encourage lawsuits, but to discourage them,
especially tort suits. The English “loser pays” rule was included in tort reform legislation
proposed by the Bush Administration in 1992, and in “The Common Sense Legal Reforms Act,”
which is part of the “Contract With America” proposed by the Republican House Members in
1994.2
The American rule has two major common law exceptions (instances when federal courts may
award attorneys’ fees without statutory authorization): the common benefit doctrine and the bad
faith doctrine. 3 These derive from the historic authority of the courts “to do equity in a particular
situation.”4 This authority has been called the “supervisory” or “inherent” power of the federal
courts.5
1
Key Tronic Corp. v. United States, 511 U.S. 809, 814-815 (1994) (holding that the phrase “any other necessary costs
of response incurred by any other person” in § 107 of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. § 9607, does not include attorneys’ fees).
2
See, CRS Report 92-237, Attorneys’ Fees: The Bush Administration Proposal to Adopt the English Rule, by (name
redacted) (out of print; available from author); CRS Report 95-27,
Common Sense Legal Reforms Act of 1995: Title I—
Civil Justice Reform (Attorneys’ Fees, Products Liability, Etc.), by (name redacted) (out of print; available from author).
The Attorney Accountability Act of 1995, H.R. 988, 104th Cong., which grew out of the Common Sense Legal Reforms
Act of 1995 (which was part of the House Republicans’ “Contract With America”), passed the House. It would have
required, among other things, the payment of attorneys’ fees in connection with rejected settlement offers in diversity
cases.
3
The Supreme Court has noted a third exception: “a court may assess attorney’s fees as a sanction for the ‘willful
disobedience of a court order.’” Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991). However, this may be viewed as
falling within the bad faith doctrine.
4
Sprague v. Ticonic National Bank, 307 U.S. 161, 166 (1939).
5
See, United States v. Horn, 29 F.3d 754, 759 (1st Cir. 1994) (sovereign immunity precludes use of supervisory power
to order the United States to pay the fees and costs incurred by criminal defendants in litigating prosecutorial
misconduct issue; but see, P.L. 105-119 (1997), discussed below in Ch. XVII). Although the Supreme Court noted in
Chambers, supra note 3, “that the exercise of the inherent power of lower federal courts can be limited by statute or
rule, for ‘[t]hese courts were created by act of Congress’” (501 U.S. at 47; the Supreme Court was created by the
Constitution, Art. III, § 1), the court of appeals in Horn wrote: “It is not yet settled whether some residuum of the
courts’ supervisory power is so integral to the judicial function that it may not be regulated by Congress (or,
alternatively, may only be regulated up to a certain point).” 29 F.3d at 760 n.5.
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Federal courts may use this inherent power even in diversity cases, which are cases arising under
state law that are brought in federal court pursuant to 28 U.S.C. § 1332 when the parties are
citizens of different states and the amount in controversy exceeds $50,000. Chambers v. NASCO,
Inc., 501 U.S. 32 (1991). In Alyeska, the Court had written that, “in the ordinary diversity case
where the state law does not run counter to a valid federal statute or rule of court, and usually it
will not, state law denying the right to attorney’s fees or giving right thereto, which reflects a
substantial policy of the state, should be followed.” 421 U.S. at 259 n.31. In Chambers, the Court
explained that this limitation “applies only to fee-shifting rules that embody a substantive policy,
such as a statute which permits a prevailing party in certain classes of litigation to recover fees.”
501 U.S. at 52. A substantive policy of the state is not “implicated by the assessment of attorney’s
fees as a sanction for bad-faith conduct before the court which involved disobedience of the
court’s orders and the attempt to defraud the court itself.” Id. at 52-53.
II. Common Law Exceptions to the American Rule
Common law exceptions to the American rule are “unquestionably assertions of inherent power in
the courts to allow attorneys’ fees in particular situations, unless forbidden by Congress.”
Alyeska, 421 U.S. at 259. The two major exceptions are cases in which a party at its own expense
creates a fund or achieves a substantial benefit in which others share, and cases in which a party
acts in bad faith. A former third exception, cases in which a plaintiff acts as a “private attorney
general” in effectuating important public policy, was eliminated by the Supreme Court in Alyeska.
Common Benefit Doctrine
“In the absence of a statutory prohibition, the federal courts have authority to award attorneys’
fees from a fund to a party who, having a common interest with other persons, maintains a suit for
the common benefit and at his own expense, resulting in the creation or preservation of a fund, in
which all those having the common interest share.” Annotation, 8 L.Ed.2d 894, 905 (1963). This
exception to the American rule does not shift the cost of attorneys’ fees to the losing party, but
rather to those who benefit from the suit. The doctrine was originally conceived in Trustees v.
Greenough, 105 U.S. 527 (1881), a case against trustees of 10 million or 11 million acres of land
who had collusively sold hundreds of thousands of those acres at nominal prices. One beneficiary,
after 11 years of litigation at his own expense, recaptured the assets and presented a claim for
reimbursement of attorneys’ fees. The Supreme Court approved the award, writing that “if the
complainant is not a trustee, he has at least acted the part of a trustee in relation to the common
interest.” Id. at 532.
In Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392 (1970), the Supreme Court held that under
the common benefit doctrine there is no requirement “that the suit actually bring money into the
court as a prerequisite to the court’s power to order reimbursement of expenses.” Mills was a
stockholders’ derivative suit, a type of case which, the Court noted, may bring substantial nonpecuniary benefits.
Boeing Co. v. Van Gemert, 444 U.S. 472 (1980), was a successful class action in which over $3
million in damages were awarded. Some class members collected their shares of the damages, but
others did not. The district court, invoking the common benefit doctrine, ordered that the
plaintiffs’ attorneys be awarded their fees from the total amount of the judgment, concluding that
it was equitable for all class members—claiming and non-claiming alike—to bear a pro rata
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share of the costs of producing the judgment in their favor. The defendant objected to use of the
unclaimed money for this purpose, arguing that the ultimate disposition of the unclaimed money
had not been decided. But the Supreme Court affirmed the award of attorneys’ fees, holding:
The common-fund doctrine, as applied in this case, is entirely consistent with the American
rule against taxing the losing party with the victor’s attorney’s fees.... Boeing presently has
no interest in any part of the fund. Any right that Boeing may establish to the return of the
money eventually claimed is contingent on the failure of the absentee class members to
exercise their present rights of possession. Although Boeing itself cannot be obliged to pay
fees awarded to the class lawyers, its latent claim against unclaimed money in the judgment
fund may not defeat each class member’s equitable obligation to share the expenses of
litigation.
Id. at 481-482.
Bad Faith Exception
In Hall v. Cole, 412 U.S. 1, 5 (1973), the Supreme Court wrote:
[I]t is unquestioned that a federal court may award counsel fees to a successful party when
his opponent has acted ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.... ’ In
this class of cases, the underlying rationale of ‘fee shifting’ is, of course, punitive, and the
essential element in triggering the award of fees is therefore the existence of ‘bad faith’ on
the part of the unsuccessful litigant.
A fee award under the bad faith exception requires subjective bad faith—“some proof of malice
entirely apart from inferences arising from the possible frivolous character of a particular claim.”
Copeland v. Martinez, 603 F.2d 981, 991 (D.C. Cir. 1979), cert. denied, 444 U.S. 1044 (1980).
In Hall v. Cole, the Supreme Court wrote: “It is clear ... that ‘bad faith’ may be found, not only in
the actions that led to the lawsuit, but in the conduct of the litigation.” 412 U.S. at 15.
Subsequently, as another court wrote: “Federal courts have applied [the bad faith] exception both
when bad faith occurred in connection with the litigation and when it was an aspect of the
conduct that gave rise to the lawsuit.”6 However, some courts have refused to apply the bad faith
exception to a party’s underlying claim, noting that the Supreme Court’s statement in Hall v. Cole
had concerned the common benefit exception, not the bad faith exception. 7
An attorney, as well as a party, who acts in bad faith may be ordered to pay the attorneys’ fees of
the opposing party. In Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-767 (1980), the
Supreme Court held:
6
Nepera Chemical, Inc. v. Sea-Land Service, 794 F.2d 688, 701 (D.C. Cir. 1986).
7
See, e.g., Sanchez v. Rowe, 870 F.2d 291, 295 (5th Cir. 1989) (“We hold that the requisite bad faith may be found in a
party’s conduct in response to a substantive claim, whether before or after the action is filed, but it may not be based on
a party’s conduct forming the basis for that substantive claim” (emphasis in original)). In Shimman v. International
Union of Operating Engineers, 744 F.2d 1226, 1231 (6th Cir. 1984) (en banc), cert. denied, 469 U.S. 1215 (1985), the
court wrote: “To allow an award of attorneys’ fees based on bad faith in the act underlying the substantive claim would
not be consistent with the rationale behind the American Rule regarding attorneys’ fees.... Attorneys’ fees incurred
while curing the original wrong are not compensable because they represent the cost of maintaining open access to an
equitable system of justice.” Attorneys’ fees incurred as the result of bad faith in the conduct of the litigation, however,
are compensable because such bad faith constitutes a new wrong imposed upon the aggrieved party.
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[I]n narrowly defined circumstances federal courts have inherent power to assess attorney’s
fees against counsel. . . . The power of a court over members of its bar is at least as great as
its authority over litigants. If a court may tax counsel fees against a party who litigated in bad
faith, it certainly may assess those expenses against counsel who willfully abuse judicial
processes.... Like other sanctions, attorney’s fees certainly should not be assessed lightly or
without fair notice and an opportunity for a hearing on the record. But in a proper case, such
sanctions are within a court’s powers.
In Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911, 919 (11th Cir. 1982), the court held “that the
Court in Roadway Express intended to authorize the assessment of attorney’s fees against counsel
who either willfully disobeyed a court order or acted in bad faith, vexatiously, wantonly, or for
oppressive reasons.”
In Roadway Express, the Supreme Court also noted that, under Federal Rule of Civil Procedure
37(b), “[b]oth parties and counsel may be held personally liable for expenses, ‘including
attorney’s fees,’ caused by the failure to comply with discovery orders.” 447 U.S. at 763. The
Court also found that only excess costs, not attorneys’ fees, could be assessed under 28 U.S.C. §
1927, which provided that any attorney “who so multiplies the proceedings in any case so as to
increase costs unreasonably and vexatiously may be required by the courts to satisfy personally
such excess costs.” However, the section soon after was amended by P.L. 96-349, § 3, to permit
awards of attorneys’ fees as well as excess costs against counsel. 8
Private Attorney General Doctrine
The private attorney general doctrine provides that a plaintiff “should be awarded attorneys’ fees
when he has effectuated a strong Congressional policy which has benefited a large class of
people, and where further the necessity and financial burden of private enforcement are such as to
make the award essential.”9 Many of the statutory exceptions to the American rule are based on
this concept. In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968), the Supreme
Court, discussing one such exception, wrote:
If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved
parties would be in a position to advance the public interest by invoking the injunctive power
of the federal courts. Congress therefore enacted the provision for counsel fees ... to
encourage individuals injured by racial discrimination to seek judicial relief under Title II
[42 U.S.C. § 2000a-3(b)].
Prior to the Supreme Court’s decision in Alyeska, some lower federal courts had awarded
attorneys’ fees under the private attorney general doctrine in suits brought under statutes that had
no fee-shifting provisions, thereby creating another court-made exception to the American rule.
Alyeska at 270 n.46. In Alyeska, however, the Court held:
[C]ongressional utilization of the private attorney general concept can in no sense be
construed as a grant of authority to the Judiciary to jettison the traditional rule against nonstatutory allowances to the prevailing party and to award attorneys’ fees whenever the court
8
Cases under 28 U.S.C. § 1927 are discussed at 12 ALR Fed 910. Other cases concerning the bad faith exception to the
American rule are discussed at 31 ALR Fed 833.
9
La Raza Unida v. Volpe, 57 F.R.D. 94, 98 (N.D. Cal. 1972), aff’d, 488 F.2d 559 (9th Cir. 1973), cert. denied, 417 U.S.
968 (1974).
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deems the public policy furthered by a particular statute important enough to warrant the
award.
421 U.S. at 263.
The primary reasons the Court gave for its decision were the difficulty “for the courts without
legislative guidance to consider some statutes important and some unimportant” and the fact that
“the rational application of the private-attorney-general rule would immediately collide with the
express provision of 28 U.S.C. § 2412,” which at the time prohibited fee awards against the
United States, except when specifically permitted by statute. Id. at 263-266.
Congress’s immediate response to Alyeska was enactment of the Civil Rights Attorney’s Fees
Awards Act of 1976, 42 U.S.C. § 1988(b), which is discussed below. 10 Congress has since enacted
many more statutes that authorize awards of attorneys’ fees in specific situations, but it has not
reversed Alyeska to grant courts the power to award attorneys fees to private attorneys general in
cases brought under statutes that do not provide for fee-shifting.
III. The Equal Access to Justice Act
Awards of attorneys’ fees against the United States were barred at common law not only because
of the American rule, but also because of the doctrine of sovereign immunity, under which the
United States may not be sued, nor its funds expended, without its consent. “Congress alone has
the power to waive or qualify that immunity,”11 and it did so, with respect to awards of attorneys’
fees, with the Equal Access to Justice Act (EAJA) in 1980. Prior to enactment of EAJA, the
common law exceptions to the American rule were inapplicable against the United States.12 Even
statutory exceptions to the American rule were inapplicable against the United States unless they
specifically authorized fee awards against the United States.
EAJA allows awards of attorneys’ fees against the United States in two broad situations. The first,
codified at 28 U.S.C. § 2412(b), makes the United States liable for the prevailing party’s
attorneys’ fees to the same extent that any other party would be under the common law and
statutory exceptions to the American rule, including the statutory exceptions that do not
specifically authorize fee awards against the United States. This provision, unlike the rest of
EAJA, contains no limitations on the assets or number of employees of parties eligible to recover
fees, and no maximum hourly rate for fee awards.
The second broad situation in which EAJA authorizes fee awards against the United States is
codified at 5 U.S.C. § 504 and 28 U.S.C. § 2412(d). These sections provide that, in specified
agency adjudications13 and in all civil actions (except tort actions and tax cases)14 brought by or
10
When enacted in 1976, this statute was codified as the last sentence of 42 U.S.C. § 1988. In 1991, P.L. 102-166,
§ 113(a), made it a separate subsection. For simplicity, it is referred to throughout this report (except in quotations) as
§ 1988(b), even when discussing court decisions between 1976 and 1991, when it was the last sentence of § 1988.
11
United States v. Chemical Foundation, Inc., 272 U.S. 1, 20 (1926).
12
See, e.g., National Association of Regional Medical Health Programs, Inc. v. Mathews, 551 F.2d 340 (D.C. Cir.
1977), cert. denied, 431 U.S. 954 (1977) (common benefit exception); Gibson v. Davis, 587 F.2d 280 (6th Cir. 1978),
cert. denied, 441 U.S. 905 (1979) (bad faith exception).
13
The type of agency adjudication in which fees may be awarded is an “adversary adjudication,” which is defined at 5
U.S.C. § 504(b)(1)(C). In Ardestani v. Immigration and Naturalization Service, 502 U.S. 129 (1991), the Supreme
(continued...)
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against the United States, the United States shall be liable for the attorneys’ fees of prevailing
parties, unless it proves that its position was substantially justified or that special circumstances
make an award unjust.15
This second portion of EAJA contains two limitations on fee awards that are not found in §
2412(b).16 First, it prescribes a fee cap unless the court or agency determines that a special factor
justifies a higher fee. (Most fee statutes authorize awards of “reasonable” fees, with the court
determining the amount.) The cap was originally $75 per hour, but P.L. 104-121, §§ 231-233,
increased it to $125 per hour for cases commenced on or after the date of its enactment, which
was March 29, 1996. Second, this portion of EAJA does not allow (with two exceptions) fees to
be awarded to individuals whose net worth exceeds $2 million, or to businesses or organizations,
including units of local government, with a net worth exceeding $7 million or more than 500
(...continued)
Court held that administrative deportation proceedings are not adversary adjudications. In Sullivan v. Hudson, 490 U.S.
877, 891 (1989), the Supreme Court held “that for purposes of the EAJA Social Security benefit proceedings are not
‘adversarial’ within the meaning of § 504(b)(1)(C) either initially or on remand from a court.” However, “where a court
orders a remand to the Secretary [of Health and Human Services] in a benefits litigation and retains continuing
jurisdiction over the case pending a decision from the Secretary which will determine the claimant’s entitlement to
benefits, the proceedings on remand are an integral part of the ‘civil action’ for judicial review and thus attorney’s fees
for representation on remand are available [under 28 U.S.C. § 2412(d)(1)(A)] subject to the other limitations in the
EAJA.” Id. at 892. See, 96 ALR Fed 336. Social Security cases also raise complications in applying EAJA’s
requirement that the prevailing party submit a fee application “within thirty days of the final judgment in the action”
(28 U.S.C. § 2412(d)(1)(B)) or “within thirty days of a final disposition in the adversary adjudication” (5 U.S.C.
§ 504(a)(2)). See, Melkonyan v. Sullivan, 501 U.S. 89 (1991); Shalala v. Schaefer, 509 U.S. 292 (1993).
14
EAJA applies in all Article III courts (see, 28 U.S.C. § 2412(c)), and explicitly applies in two Article I courts: the
Court of Federal Claims and the United States Court of Veterans Appeals (28 U.S.C. § 2412(d)(2)(F)). As for other
Article I courts, it does not apply in Tax Court (Bowen v. Commissioner, 706 F.2d 1087 (11th Cir. 1983)); as for tax
cases, see ch. VIII of this report. In addition, “[t]he circuits are divided about whether bankruptcy courts are ‘courts of
the United States’ and therefore have authority under EAJA or [26 U.S.C.] section 7430.” In re Cascade Roads, Inc., 34
F.3d 756, 767 n.12 (9th Cir. 1994). See, Charles R. Haywood, The Power of Bankruptcy Courts to Shift Fees under the
Equal Access to Justice Act, 61 University of Chicago Law Review 985 (1994). Tort cases against the United States are
brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. The FTCA requires that, prior
to filing suit, a claimant must first present his claim to the federal agency out of whose activities his claim arose. If the
claim is settled before suit is filed, the claimant’s attorney may receive up to 20 percent of the settlement; if it is not,
the claimant’s attorney may receive up to 25 percent of a court award or settlement. 28 U.S.C. § 2678. See, 86 ALR
Fed 866. Fee awards against the United States are not authorized by the FTCA or by 28 U.S.C. § 2412(d). They
presumably may be awarded under the common law bad faith doctrine made applicable against the United States by 28
U.S.C. § 2412(b). In Sanchez v. Rowe, 870 F.2d 291, 295 (5th Cir. 1989), the court found a lack of the requisite bad
faith and therefore did “not reach the issue whether an award of attorneys fees would ... be barred by the FTCA
prohibition against punitive damages [28 U.S.C. § 2674].” Subsequently, however, in Molzof v. United States, 502 U.S.
301, 312 (1992), the Supreme Court, in a different context, held “that § 2674 bars the recovery only of what are legally
considered ‘punitive damages’ under traditional common-law principles.” (Emphasis in original.)
15
EAJA does not specify which party has the burden of proof as to whether the position of the United States was
substantially justified or special circumstances make an award unjust. However, the conference report to the original
EAJA states: “After a prevailing party has submitted an application for an award, the burden of proving that a fee
award should not be made rests with the Government.” H.Rept. 96-1434, at 22. In addition, in Scarborough v. Principi,
541 U.S. 401, 405 (2004), the Supreme Court noted that “the Government may defeat this entitlement [to a fee award]
by showing that its position in the underlying litigation ‘was substantially justified.’” The “position” of the United
States that the government must prove to have been substantially justified in order to avoid a fee award includes both
the conduct of the government in the proceeding itself and the action of the government that gave rise to the
proceeding. 5 U.S.C. § 504(b)(1)(E); 28 U.S.C. § 2412(d)(2)(D).
16
These limitations are incorporated into P.L. 105-119 (1997), which authorizes awards of attorneys’ fees to prevailing
criminal defendants, and is discussed in ch. XVII of this report.
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employees.17 This portion of EAJA sunset, by the terms of the original Act, on October 1, 1984.
In 1985, EAJA was reenacted, retroactive to October 1, 1984, and made permanent.
P.L. 104-121, in addition to raising the cap under EAJA to $125 per hour, added the following
provision to 28 U.S.C. § 2412(d), and a corresponding one to 5 U.S.C. § 504 applicable to
adversary adjudications:
If, in a civil action brought by the United States or a proceeding for judicial review of an
adversary adjudication described in section 504(a)(4) of title 5, the demand by the United
States [other than a recitation of the maximum statutory penalty] is substantially in excess of
the judgment finally obtained by the United States and is unreasonable when compared with
such judgment, under the facts and circumstances of the case, the court shall award to the
party the fees and other expenses related to defending against the excessive demand, unless
the party has committed a willful violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust. Fees and expenses awarded under this paragraph shall
be paid only as a consequence of appropriations provided in advance.
This provision thus authorizes fee awards in favor of losing parties and in that respect is unique in
the law of attorneys’ fees.
In Pierce v. Underwood, 487 U.S. 552 (1988), the Supreme Court decided three issues concerning
EAJA: (1) the applicable standard of appellate review, (2) the meaning of “substantially
justified,” and (3) the “special factors” that allow a court to award more than $75 per hour.
(1) Standard of Review. Pierce v. Underwood addressed the standard that a federal court of
appeals applies in reviewing a decision of a federal district court under EAJA. Either party may
appeal a district court’s decision under EAJA, and, as the Supreme Court explained:
For purposes of standard of review, decisions by judges are traditionally divided into three
categories, denominated questions of law (reviewable de novo), questions of fact (reviewable
for clear error), and matters of discretion (reviewable for “abuse of discretion”).
487 U.S. at 558.
The Supreme Court found that EAJA did not provide a clear prescription as to the appropriate
standard of review (unlike, for example, 42 U.S.C. § 1988(b), which provides that “the court, in
its discretion, may allow the prevailing party ... a reasonable attorney’s fee”). The Court,
therefore, for a variety of reasons, held that the “abuse of discretion” standard was most
appropriate for appeals of EAJA court decisions.
Awards of attorneys’ fees under EAJA at the agency level may be appealed to a court only by the
prevailing party, not by the United States. The statute, at 5 U.S.C. § 504(c)(2), provides:
The court’s determination on any appeal heard under this paragraph shall be based solely on
the factual record made before the agency. The court may modify the determination of fees
and other expenses only if the court finds that the failure to make an award of fees and other
17
The two exceptions are tax-exempt organizations and agricultural cooperatives; they may recover fees regardless of
their net worth but apparently may not recover fees if they have more than 500 employees. See, 5 U.S.C.
§ 504(b)(1)(B); 28 U.S.C. § 2412(d)(2)(B); Unification Church v. Immigration & Naturalization Service, 762 F.2d
1077 (D.C. Cir. 1985).
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expenses, or the calculation of the amount of the award, was unsupported by substantial
evidence.
Prior to the 1985 amendments to EAJA, this provision stated that the court could modify an
agency decision only if it found “an abuse of discretion.” It was intended that the new standard—
“unsupported by substantial evidence”—permit “a broader scope of review ... consistent with the
normal scope of judicial review of agency actions.”18
(2) “substantially justified.”19 The United States may avoid liability for attorneys’ fees under
EAJA by proving that its position “was substantially justified or that special circumstances make
an award unjust.” 5 U.S.C. § 504(a)(1), 28 U.S.C. § 2412(d). The legislative history of the
original EAJA stated that “[t]he test of whether the Government position is substantially justified
is essentially one of reasonableness in law and fact.”20 Twelve of the thirteen federal circuits
subsequently interpreted “substantially justified” to mean reasonable. See, Pierce v. Underwood,
487 U.S. at 565-566. The U.S. Court of Appeals for the District of Columbia was the exception. It
reasoned:
The Senate Judiciary Committee considered and rejected an amendment to the bill that
would have changed the pertinent language from “substantially justified” to “reasonably
justified.” S.Rept. 96-253 [96th Cong., 1st sess.] at 8. That refusal suggests that the test
should, in fact, be slightly more stringent than “one of reasonableness.”21
According to this view, the government’s position may be reasonable, yet fail to be substantially
justified, making it easier to recover fees under the substantially justified standard than under a
reasonableness standard. The 1985 amendments to EAJA did not alter the text of the substantially
justified language, but an accompanying committee report expressed support for the D.C.
Circuit’s interpretation:
Several courts have held correctly that “substantial justification” means more than merely
reasonable. Because in 1980 Congress rejected a standard of “reasonably justified” in favor
of “substantially justified,” the test must be more than just reasonableness.22
The Supreme Court in Pierce v. Underwood held that substantially justified means reasonable.
The Court found that a “more than mere reasonableness” test would be “out of accord with prior
usage” and “unadministerable.” “Between the test of reasonableness,” the Court wrote, “and a test
such as ‘clearly and convincingly justified’ ... there is simply no accepted stopping-place, no
ledge that can hold the anchor for steady and consistent judicial behavior.” 487 U.S. at 568. The
Court found that the 1985 committee report was not controlling because it was neither “(1) an
authoritative interpretation of what the 1980 statute meant, or (2) an authoritative expression of
what the 1985 Congress intended.” Id. at 566.
(3) Exceeding $75 (now $125) per hour. EAJA provides that fees “shall be based upon
prevailing market rates for the kind and quality of the services furnished,” but “shall not be
awarded in excess of $75 [$125 for cases commenced on or after March 29, 1996] per hour unless
18
H.Rept. 99-120, 99th Cong., 1st sess., 16 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 145.
19
Cases construing this term as used in EAJA are collected at 69 ALR Fed 130.
20
H.Rept. 96-1434, 96th Cong., 2nd sess., 22 (1980), reprinted in 1980 U.S.C.C.A.N. 5003, 5011.
21
Spencer v. National Labor Relations Board, 712 F.2d 539, 558 (D.C. Cir. 1983), cert. denied, 466 U.S. 936 (1984).
22
H.Rept. 99-120, 99th Cong., 1st sess., 9 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 138.
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the court determines that an increase in the cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28
U.S.C. § 2412(d)(2)(A)(ii). (The same cap applies in agency proceedings; see, 5 U.S.C.
§ 504(b)(1)(A)). The Court in Pierce v. Underwood held:
If “the limited availability of qualified attorneys for the proceedings involved” meant merely
that lawyers skilled and experienced enough to try the case are in short supply, it would
effectively eliminate the $75 cap—since the “prevailing market rates for the kind and quality
of the services furnished” are obviously determined by the relative supply and quality of
services.... We think it refers to attorneys having some distinctive knowledge or specialized
skill needful for the litigation in question—as opposed to an extraordinary level of the
general lawyerly knowledge and ability useful in all litigation. Examples of the former would
be an identifiable practice specialty such as patent law, or knowledge of foreign law or
language.
487 U.S. at 571-572.
As for other “special factors,” the Court wrote:
For the same reason of the need to preserve the intended effectiveness of the $75 cap, we
think the other “special factors” envisioned by the exception must be such as are not of broad
and general application. We need not specify what they might be....
Id. at 573.
The Court, however, specified some items which are not special factors for purposes of exceeding
the $75 per hour cap: “the novelty and difficulty of issues,” “the undesirability of the case,” “the
work and ability of counsel,” “the results obtained,” “customary fees and awards in other cases,”
and “the contingent nature of the fee.” All these “are factors applicable to a broad spectrum of
litigation; they are little more than routine reasons why market rates are what they are.” Id.
In Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S. 154 (1990), the
Supreme Court held that, under EAJA, a prevailing party may recover attorneys’ fees for services
rendered in seeking a fee award without regard to whether the position of the United States was
substantially justified. If the prevailing party is entitled to fees in the main action, then he is automatically entitled to fees for the time spent seeking fees. To hold otherwise could “spawn a
‘Kafkaesque judicial nightmare’ of infinite litigation for the last round of litigation over fees.” Id.
at 163.23
In Scarborough v. Principi, 541 U.S. 401 (2004), the Supreme Court addressed EAJA’s
requirement that fee applications be filed “within thirty days of final judgment in the action,” and
“allege that the position of the United States was not substantially justified.” 28 U.S.C. §
2412(d)(1)(B). The Court held that, when a fee application is filed within 30 days, but fails to
allege that the position of the United States was not substantially justified, the application may be
amended to remedy the oversight, even after the 30 days have elapsed.
In Richlin Security Service Co. v. Chertoff, 128 S. Ct. 2007, 2019 (2008), the Supreme Court held
that, under EAJA, “a prevailing party ... may recover its paralegal fees from the Government at
23
Annotations concerning EAJA include 69 ALR Fed 130, 96 ALR Fed. 275, 96 ALR Fed 336, 105 ALR Fed 110, 106
ALR Fed 191, 107 ALR Fed 827, and 113 ALR Fed 267.
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prevailing market rates.” The lower court, which the Supreme Court reversed, had held that the
prevailing party could recover fees for paralegal services only at their cost to the party’s
attorney. 24
Source of Fees Paid by the Government
Both agency-awarded and court-awarded fees are “paid by the agency over which the party
prevails from any funds made available to the agency by appropriation or otherwise.” 5 U.S.C.
§ 504(d), 28 U.S.C. § 2412(d)(4). Fee awards under 28 U.S.C. § 2412(b) are presumably paid
from the source that pays damages awarded under the statute that authorizes fee awards.
Formerly Required Annual Reports to Congress
With respect to agency-awarded fees, the EAJA provides, “The Chairman of the Administrative
Conference of the United States, after consultation with the Chief Counsel for Advocacy of the
Small Business Administration, shall report annually to the Congress on the amount of fees and
other expenses awarded during the preceding fiscal year pursuant to this section.” 5 U.S.C.
§ 504(e). This provision remains on the books, but it has no effect because the Administrative
Conference of the United States has not been functioning since 1996.25
With respect to court-awarded fees, the EAJA formerly provided, “The Attorney General shall
report annually to the Congress on the amount of fees and other expenses awarded during the
preceding fiscal year pursuant to this subsection.” 28 U.S.C. § 2412(d)(5). This provision was
repealed by P.L. 104-66, § 1091(b) (1995).
IV. The Dual Standard: Prevailing Plaintiffs and
Prevailing Defendants
Most federal fee-shifting provisions authorize courts to award fees if “the fee claimant was the
‘prevailing party,’ the ‘substantially prevailing party,’ or ‘successful.’” Ruckelshaus v. Sierra
Club, 463 U.S. 680, 684 (1983). Although most of these statutes on their face do not distinguish
between prevailing plaintiffs and prevailing defendants, the Supreme Court has held that
Congress intended that under the civil rights statutes a dual standard should be applied in
determining the appropriateness of fee awards to prevailing plaintiffs and prevailing defendants.26
In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), the Court considered 42 U.S.C.
§ 2000a-3(b), the provision in Title II of the Civil Rights Act of 1964 that provides for
discretionary fee awards to prevailing parties. Noting that a plaintiff who is successful in a Title II
suit vindicates “a policy that Congress considered of the highest priority”—enjoining racial
24
The Supreme Court’s ruling was consistent with its decision in Missouri v. Jenkins, 491 U.S. 274 (1989), which the
Court cited.
25
See H. Conf. Rep. No. 104-291, 104th Cong., 1st Sess. (1995) at 6.
26
Cases that interpret an attorneys’ fees provision of one civil rights statute generally apply to the attorneys’ fees
provisions of all civil rights statutes, as they are all generally modeled on the fee-shifting provisions of the Civil Rights
Act of 1964. The Supreme Court has noted “that fee-shifting statutes’ similar language is a ‘strong indication’ that they
are to be interpreted alike.” Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989).
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discrimination—the Court held that under Title II a successful plaintiff “should ordinarily recover
an attorney’s fee unless special circumstances would render an award unjust.” Id. at 402.
In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the Court held that the Piggie Park
standard of awarding attorneys’ fees to a successful plaintiff is equally applicable under Title VII
of the Civil Rights Act, 42 U.S.C. § 2000e-5(k).
In Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412,
417 (1978), the Court was faced with the question “what standard should inform a district court’s
discretion in deciding whether to award attorney’s fees to a successful defendant in a Title VII
action?” The Court noted that the statute on its face provided “no indication whatever of the
circumstances under which either a plaintiff or defendant should be entitled to attorney’s fees,”
and found that there are “strong equitable considerations” counseling a dual standard in
determining the appropriateness of fee awards in the two situations. Id. at 418. Although
prevailing plaintiffs should ordinarily recover attorneys’ fees unless special circumstances would
render an award unjust, prevailing defendants should recover fees only upon a finding that a
plaintiff’s action was “frivolous, unreasonable, or without foundation,” although a finding that the
action was brought in subjective bad faith is not necessary. Id. at 421. (A finding of subjective bad
faith entitles either prevailing plaintiffs or defendants to a fee award under the common law
exception to the American rule.)
The reason for the dual standard “is that while Congress wanted to clear the way for suits to be
brought under the Act, it also wanted to protect defendants from burdensome litigation having no
legal or factual basis.” Id. at 420. Awarding fees to prevailing plaintiffs in the ordinary case will
encourage suits to vindicate the public interest, but awarding fees to defendants in the ordinary
case might have a chilling effect on the institution of such suits. Awarding fees to defendants in
frivolous cases, however, may discourage such suits.27
In Hughes v. Rowe, 449 U.S. 5, 14 (1980), the Supreme Court discussed the applicability of the
Christiansburg standard for awards of attorneys’ fees to prevailing defendants under the Civil
Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988(b):
Although arguably a different standard might be applied in a civil rights action under 42
U.S.C. § 1983, we can perceive no reason for applying a less stringent standard. The
plaintiff’s action must be meritless in the sense that it is groundless or without foundation.
The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification
for the assessment of fees.
With respect to awards under § 1988(b) to prevailing plaintiffs, the court of appeals in Brown v.
Culpepper, 559 F.2d 274, 278 (5th Cir. 1977), wrote:
In Title II and Title VII [of the Civil Rights Act of 1964] cases the Fifth Circuit has held that
the defendant’s conduct, be it negligent or intentional, in good faith or bad, is irrelevant to an
27
In Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911 (11th Cir. 1982), the court held that a Title VII plaintiff is not
relieved from liability for attorneys’ fees by the fact that his attorney was primarily responsible for the fact that his
lawsuit was frivolous, unreasonable, or without foundation. The court wrote:In virtually all actions without legal basis,
and in many without factual basis, it will be the plaintiff’s attorney who should first recognize the insufficiency of the
case.... If plaintiffs in such cases were permitted to escape liability under § 706 [42 U.S.C. § 2000e-5(k)], the salutary
effect of that provision would be diluted.... [I]n many cases ... in which the plaintiff’s counsel may appear to be
primarily culpable, the plaintiff may find relief from the effect of our rule in the form of a malpractice action.Id. at 916.
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award of attorneys’ fees [citations omitted]. We now hold that, consistent with congressional
intent, the same standard should apply to section 1988.
In Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 755, 761 (1989), the
Supreme Court held that, under Title VII of the Civil Rights Act of 1964, a court may “award
attorney’s fees against intervenors who have not been found to have violated the Civil Rights Act
or any other federal law ... only where the intervenors’ action was frivolous, unreasonable, or
without foundation.”
The dual standard has also been held applicable to the attorneys’ fees provisions in federal
environmental statutes28 and under the Truth in Lending Act. 29 However, it apparently is “more
difficult for an environmental plaintiff than a civil rights plaintiff to recover an attorney fee.”30
The Supreme Court has held that the dual standard does not apply under the attorneys’ fees
provision of the Copyright Act, 17 U.S.C. § 505, which, like those of the civil rights statutes, does
not distinguish on its face between plaintiffs and defendants. In Fantasy, Inc. v. Fogerty, 510 U.S.
717, 527 (1994), the Court held that, in contrast with the civil rights statutes, under the Copyright
Act, “defendants who seek to advance a variety of meritorious copyright defenses should be
encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious
claims of infringement.” The Court rejected both the dual standard and “the British Rule for
automatic recovery of attorney’s fees by the prevailing party. Prevailing plaintiffs and prevailing
defendants are to be treated alike, but attorney’s fees are to be awarded to prevailing parties only
as a matter of the court’s discretion.” Id. at 534.
V. The Concept of Prevailing Party
“The 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.”31
This language was quoted in Sole v. Wyner, 127 S. Ct. 2188, 2194 (2007), which held that, under
42 U.S.C. § 1988(b), a plaintiff who secures a preliminary injunction, but then loses on the
merits, has gained no enduring change in the legal relationship between herself and the state
officials she sued, and therefore is not entitled to an award of attorneys’ fees. The Court expressed
no view, however, “on whether, in the absence of a final decision on the merits of a claim for
permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant
an award of counsel fees.” Id. at 2196. But “nearly every Court of Appeals to have addressed the
issue has held that relief obtained via a preliminary injunction can, under appropriate
circumstances, render a party ‘prevailing.’”32
28
Consolidated Edison Co. v. Realty Investment Associates, 524 F. Supp. 150 (S.D.N.Y. 1981).
Postow v. OBA Federal S&L Ass’n, 627 F.2d 1370, 1387-1388 (D.C. Cir. 1980) (rejecting an equal protection
challenge by citing Christiansburg “in concluding that the interest in such private enforcement constitutes a rational
basis for a legislative distinction to be drawn between attorneys’ fee awards to successful plaintiffs but not successful
defendants”).
30
Mary Frances Derfner and Arthur D. Wolf, 1 COURT AWARDED ATTORNEY FEES, ¶ 8.02[2], pp. 8-9 (Matthew Bender,
1997) (attributing this fact to the Supreme Court’s decision in Ruckelshaus, discussed in section V).
31
Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782, 792-793 (1989).
32
People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 232-233 (3d Cir. 2008).
29
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In Hewitt v. Helms, 482 U.S. 755, 760 (1987), the Supreme Court noted that a plaintiff must
“receive at least some relief on the merits of his claim before he can be said to prevail.” Thus, it
held in that case that, under 42 U.S.C. § 1988(b), a plaintiff was not entitled to a fee award where
“[t]he most that he obtained was an interlocutory ruling [by a court of appeals] that his complaint
should not have been dismissed for failure to state a constitutional claim.” The court of appeals
had “explicitly left it to the District Court ‘to determine the appropriateness and availability of the
requested relief’... ; the Court of Appeals granted no relief of its own, declaratory or otherwise.”
Id.
A “prevailing party,” however, is not limited to a victor only after entry of a final judgment
following a full trial on the merits. “The fact that respondent prevailed through a settlement rather
than through litigation does not weaken her claim to fees.” Maher v. Gagne, 448 U.S. 122, 129
(1980). Permitting fee awards upon favorable settlements encourages prevailing parties to settle,
thereby lessening docket congestion, and it prevents losing parties from escaping liability for fees
merely by conceding cases before final judgment.
The simplest means of providing for an award is through a stipulation in the settlement that a
particular party has prevailed and that a specified amount constitutes reasonable attorneys’ fees. It
has been held that, in settled cases in which courts are called upon to determine entitlement to
attorneys’ fees, judges should engage in “a close scrutiny of the totality of circumstances
surrounding the settlement, focusing particularly on the necessity for bringing the action and
whether the party is the successful party with respect to the central issue.” Use of this standard
will prevent fee awards in “nuisance settlements.”33
In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human
Resources, the Supreme Court held that a party is not a “prevailing party” under federal feeshifting statutes if it “has failed to secure a judgment on the merits or a court-ordered consent
decree, but has nonetheless achieved the desired result because the lawsuit brought about a
voluntary change in the defendant’s conduct.”34 Prior to this decision, most federal courts of
appeals had recognized the “catalyst theory” and awarded fees in such circumstances.
In cases that are litigated to conclusion, a party may be deemed to have prevailed for purposes of
a fee award prior to the losing party’s having exhausted its final appeal. However, a party that
prevails at the trial level will ultimately be entitled to a fee award only if it finally prevails on
appeal.35 A party awarded fees upon prevailing at the trial level apparently may be precluded from
collecting them pending appeal; Federal Rule of Civil Procedure 62 (28 U.S.C. App. Rule 62)
provides for a stay of proceedings to enforce a judgment pending appeal. If a party that prevails at
the trial level should collect a fee award and subsequently lose the case on appeal, it apparently
would be obligated to return the money.
33
Parker v. Matthews, 411 F. Supp. 1059, 1064 (D.D.C. 1976), aff’d sub nom. Parker v. Califano, 561 F.2d 320 (D.C.
Cir. 1977).
34
532 U.S. 598, 600 (2001).
35
See, Poelker v. Doe, 432 U.S. 519, 521 n.2 (1977). Fee awards may include amounts incurred in litigation over the
fee award. See, 16 ALR Fed 643, § 10. However, in Jensen v. City of San Jose, 806 F.2d 899 (9th Cir. 1986) (en banc),
the defendant prevailed on the merits and was awarded fees. On appeal, the fee award (but not the decision on the
merits) was overturned, and the plaintiff was held ineligible to recover attorneys’ fees incurred in overturning the fee
award.
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A party may also be deemed to have prevailed even before final disposition at the trial level. In
Bradley v. Richmond School Board, 416 U.S. 696, 723 (1974), the Supreme Court wrote:
To delay a fee award until the entire litigation is concluded would work a substantial
hardship on plaintiffs and their counsel, and discourage the institution of actions.... A district
court must have the discretion to award fees and costs incident to the final disposition of
interim matters.
At what stage of the litigation may a party be entitled to an interim award? In Bradley the Court
would:
say only that the entry of any order that determines substantial rights of the parties may be an
appropriate occasion upon which to consider the propriety of an award of counsel fees....
Id. at 723 n.28.
In Bradley, the statute under which fees were awarded, 20 U.S.C. § 1617 (since repealed),
permitted awards only “[u]pon entry of a final order by a court of the United States.” The Court,
in allowing an interim award under this statute, noted that “many final orders may issue in the
course of litigation.” Id. at 723. In the case of a statute or common law rule that permits fee
awards to prevailing parties but does not expressly make entry of a final order a prerequisite for
such awards, fee awards may be appropriate at some stage of the litigation prior to entry of an
interim final order.
Some courts have required recipients of interim awards to post bonds to insure recovery of the
awards and interest should the recipients ultimately lose. 36
In Hanrahan v. Hampton, 446 U.S. 754 (1980), a district court had directed verdicts for the
defendants, but the court of appeals had reversed and ordered a new trial. The court of appeals
had also ordered the defendants, under the Civil Rights Attorney’s Fees Awards Act of 1976, 42
U.S.C. § 1988(b), to pay the attorneys’ fees incurred by the plaintiffs during the course of their
appeal. The Supreme Court reversed the award of attorneys’ fees on the ground that the plaintiffs
were not “prevailing” parties as required by the statute as a condition for a fee award. The Court
concluded that, under § 1988(b), although “a person may in some circumstances be a ‘prevailing
party’ without having obtained a favorable ‘final judgment following a full trial on the merits,’” a
party must have “established his entitlement to some relief on the merits of his claims, either in
the trial court or on appeal.” Being granted the right to a new trial was not a victory on the merits;
nor were any favorable procedural or evidentiary rulings victories on the merits, even though they
may affect the disposition on the merits.37
36
Nicodemus v. Chrysler Corp.—Toledo Machining Plant, 445 F. Supp. 559 (N.D. Ohio 1977), rev’d on other
grounds, 596 F.2d 152 (6th Cir. 1979); Howard v. Phelps, 443 F. Supp. 374 (E.D. La. 1978).
37
The Court’s holding in Hanrahan apparently applies to cases brought under Title II and Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000a-3(b) and 2000e-5(k), and § 402 of the Voting Rights Act Amendments of 1975, 42
U.S.C. § 19731(e), because, as the Court noted, § 1988(b) was patterned on these statutes. 446 U.S. at 758 n.4. Under
Title VII, a party who prevails on an interlocutory appeal apparently is entitled to attorneys’ fees at least “when an
interlocutory appeal results in a final resolution of a separable dispute.” Grubbs v. Butz, 548 F.2d 973, 975 n.5 (D.C.
Cir. 1976). See also, Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980); Van Hoomissen v. Xerox
Corp., 503 F.2d 1131 (9th Cir. 1974).
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In Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam), the Supreme Court held that a
declaratory judgment, like any other judgment, “will constitute relief, for purposes of § 1988(b),
if, and only if, it affects the behavior of the defendant towards the plaintiff. In this case, there was
no such result.” In this case, two prisoners had sued prison officials for refusing to allow them to
subscribe to a magazine. They won declaratory relief, but only after one had died and the other
had been released from prison.
In Ruckelshaus v. Sierra Club, 463 U.S 680, 694 (1983), the Supreme Court held that § 307(f) of
the Clean Air Act, 42 U.S.C. § 7607(f), authorizes awards of attorneys’ fees only to plaintiffs who
have “some degree of success on the merits.” This statute, as well as other federal environmental
laws, provides: “In any judicial proceeding under this section, the court may award costs of
litigation (including reasonable attorney and expert witness fees) whenever it determines that
such an award is appropriate.” On their face, these statutes allow fee awards even to parties who
do not prevail, and, in the case under consideration, the court of appeals had awarded fees to such
a party, holding that it was “appropriate” for it to receive fees for its contributions to the goals of
the Clean Air Act.
The Supreme Court acknowledged that the legislative history of the act stated that it was not
intended that fee awards “should be restricted to cases in which the party seeking fees was the
‘prevailing party.’” 463 U.S. at 687. The Court noted, however, that, prior to enactment of §
307(f), some courts had interpreted the phrase “prevailing party” in various fee-shifting statutes
as limited to a party who prevailed “essentially” on “central issues.” Id. at 688. When Congress
said that awards under § 307(f) should not be restricted to prevailing parties, it meant, the Court
held, merely to eliminate these restrictive readings of the phrase “prevailing party.”38 Specifically,
Congress meant only “to expand the class of parties eligible for fee awards from prevailing
parties to partially prevailing parties—parties achieving some success, even if not major success”
(emphasis supplied by Court). Id.39
In Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), the Supreme Court noted that “plaintiffs may
be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant
issue in litigation which achieves some of the benefit the parties sought in bringing suit.”
However, if the plaintiffs achieve only some of the benefit, then they will not necessarily be
entitled to a full award of attorneys’ fees. The Court addressed the issue of whether, under 42
U.S.C. § 1988(b), “a partially prevailing plaintiff may recover an attorney’s fee for legal services
on unsuccessful claims.” Id. at 426. The Court held:
Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his
successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a
plaintiff who has won substantial relief should not have his attorney’s fee reduced simply
because the district court did not adopt each contention raised. But where the plaintiff
38
In footnote 1 of its opinion in Ruckelshaus, the Court wrote: “Sixteen federal statutes and § 304(d) of the Clear Air
Act contain provisions for awards of attorney’s fees identical to § 307(f).” It then listed 13 of them. The others are the
Solid Waste Disposal Act, 42 U.S.C. § 6792(e), and two sections of the Toxic Substances Control Act (TOSCA), 15
U.S.C. §§ 2619(c)(2) and 2620(b)(4)(C). (The Court did list a third section of TOSCA, 15 U.S.C. § 2618(d)). The
Court then wrote: “As explained below [it did not explain below], the interpretation of ‘appropriate’ in § 307(f)
controls construction of the term in these statutes.” The interpretation of these other statutes had not been at issue in the
case.
39
P.L. 104-121 (1996), as quoted in ch. III of this report, amended the Equal Access to Justice Act was amended to
authorize fees to losing parties in some instances.
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achieved only limited success, the district court should award only that amount of fees that is
reasonable in relation to the results obtained.
Id. at 440.
As for how to determine the amount of fees that is reasonable when the plaintiff achieves only
limited success, the Court wrote:
There is no precise rule or formula for making these determinations. The district court may
attempt to identify specific hours that should be eliminated, or it may simply reduce the
award to account for the limited success. The court necessarily has discretion in making this
equitable judgment.
Id. at 436-437.
In Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782, 791
(1989), the Supreme Court held that, under 42 U.S.C. § 1988(b), although a party must prevail on
a “significant” issue in order to be eligible for a fee award, it need not prevail on the “central”
issue in the litigation. “[T]he degree of the plaintiff’s success in relation to the other goals of the
lawsuit is a factor critical to the determination of the size of a reasonable fee, not to eligibility for
a fee award at all.” Id. at 790 (emphasis in original).
In Farrar v. Hobby, 506 U.S. 103 (1992), the Supreme Court held that, under 42 U.S.C. §
1988(b), a plaintiff who is awarded only nominal damages—in this case one dollar when he had
sought $17 million—is a prevailing party for attorneys’ fees purposes. Nevertheless, “[w]hen a
plaintiff recovers only nominal damages because of his failure to prove an essential element of
his claim for monetary relief ... , the only reasonable fee is usually no fee at all.” Id. at 115. In this
case, the plaintiff had established “the violation of his right to procedural due process but cannot
prove actual injury.” Id. at 112. Consequently, although he was a “prevailing party,” he was
entitled to no award of attorneys’ fees.
Can a person receive an award of attorneys’ fees for representing himself? In Kay v. Ehrler, 499
U.S. 432, 435 (1991), the Supreme Court noted that there is no disagreement “that a pro se
litigant who is not a lawyer is not entitled to attorney’s fees” under 42 U.S.C. § 1988(b). The
question before the Court however was whether a pro se litigant who is an attorney is entitled to
fees under § 1988(b). The Court found no answer in the statute or in its legislative history. It ruled
against the attorney in an effort to create an incentive for attorneys not to represent themselves,
because an attorney who represents himself “is deprived of the judgment of an independent third
party.” Id. at 437. It concluded that its decision would serve “[t]he statutory policy of furthering
the successful prosecution of meritorious claims.” Id. at 438. Kay v. Ehrler has been applied to
other fee-shifting statutes, including the Equal Access to Justice Act, the Freedom of Information
Act, the Individuals with Disabilities Education Act, the Fair Debt Collection Practices Act, and
Title VII of the Civil Rights Act of 1964.40
40
Gregory Paul Barbee, Attorney’s Fee Awards to Pro Se Litigants After Kay v. Ehrler: No Fees. It’s Simple. But is it
Absolute?, 69 Southern California Law Review 1795, 1817 (1996).
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VI. Awards of Attorneys’ Fees Incurred in
Administrative Proceedings
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), provides, in pertinent part:
In any action or proceeding under this subchapter the court, in its discretion, may allow the
prevailing party ... a reasonable attorney’s fee as part of the costs.
In New York Gaslight Club v. Carey, 447 U.S. 54 (1980), the plaintiff sought relief for an alleged
violation of Title VII of the Civil Rights Act of 1964, and filed a state administrative proceeding,
as required by the act, and a federal court suit. She won the state proceeding and agreed to a
dismissal of the federal court suit, except for her request for attorneys’ fees. The Supreme Court
upheld her right to an award by the court of attorneys’ fees incurred at the administrative level.
The Court noted “Congress’s use of the broadly inclusive disjunctive phrase ‘action or
proceeding’” (id. at 61) and added that it found nothing to indicate that “proceeding” was
intended to apply only to federal agency proceedings. In dicta, the Court added that, for purposes
of a fee award, it did not matter whether the plaintiff had lost at the administrative level and
prevailed in court on the merits, or had prevailed at the administrative level and sued in court
solely to recover attorneys’ fees incurred at the administrative level. The Court wrote:
It would be anomalous to award fees to the complainant who is unsuccessful or only partially
successful in obtaining state or local remedies, but to deny an award to the complainant who
is successful in fulfilling Congress’ plan that federal policies be vindicated at the state or
local level.
Id. at 66.
Title VII’s attorneys’ fees provision has been a model for others. One of the statutes modeled on it
was the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988(b). It provides:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983,
1985, and 1986 of this title, title IX of P.L. 92-318, the Religious Freedom Restoration Act
of 1993, title VI of the Civil Rights Act of 1964, or section 40302 of the Violence Against
Women Act of 1994, the court, in its discretion, may allow the prevailing party, other than
the United States, a reasonable attorney’s fee as part of the costs.
In Webb v. County Board of Education of Dyer County, Tennessee, 471 U.S. 234 (1985), the
plaintiff lost an administrative hearing authorized by state law but subsequently prevailed in a
federal court suit under 42 U.S.C. § 1983. He then filed a motion for an award under § 1988(b) of
attorneys’ fees incurred in both the hearing and the suit. The Supreme Court faced the same
question it had in faced in Gaslight—the recoverability of fees incurred at the administrative
level—but this time with respect to fee awards under 42 U.S.C. § 1988(b) in cases brought under
42 U.S.C. § 1983. Even though § 1988(b) contains the same “action or proceeding” language as
Title VII, the Court held that § 1988(b) does not authorize awards of fees in § 1983 administrative
proceedings. The basis for the different results in Gaslight and Webb was that under Title VII
administrative proceedings are mandatory, but under § 1983 they are not, and it is only mandatory
proceedings that are brought to “enforce” a federal civil rights statute. Because the plaintiff could
have gone “straight to court to assert” his § 1983 claim, the Court found that:
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the school board proceedings in this case simply do not have the same integral function
under § 1983 that state administrative proceedings have under Title VII.... Administrative
proceedings ... created by state law simply are not any part of the proceedings to enforce
§ 1983.
471 U.S. at 241.
The Court did not explicitly address whether the word “proceeding” in § 1988(b) had any
reference in the context of a § 1983 “action or proceeding,” but it did allow that attorneys’ fees
incurred in an administrative proceeding could be awarded in a § 1983 action to the extent “that
any discrete portion of the work product from the administrative proceeding was work that was
both useful and of a type ordinarily necessary to advance the civil rights litigation....” Id. at 242.
The most recent Supreme Court decision to address the issue of awards of attorneys’ fees incurred
at the administrative level was North Carolina Department of Transportation v. Crest Street
Community Council, Inc., 479 U.S. 6 (1986). The plaintiffs in this case had prevailed in a federal
administrative proceeding under Title VI of the Civil Rights Act of 1964, and sought to recover
fees under § 1988(b) in an independent action in federal court. It might have been expected that
the Supreme Court would decide whether § 1988(b) authorized an award of attorneys’ fees
incurred at the administrative level on the basis of whether an administrative proceeding under
Title VI was mandatory, and therefore was a proceeding to enforce Title VI. However, the Court
did not reach this issue because it rejected a fee award on a different ground: that an action solely
to recover a fee award is not an action to enforce Title VI. The Court wrote:
The plain language of § 1988 suggests the answer to the question of whether attorney’s fees
may be awarded in an independent action which is not to enforce any of the civil rights laws
listed in § 1988. The section states that in the action or proceeding to enforce the civil rights
laws listed—42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, Title IX, or Title VI—the court
may award attorney’s fees. The case before us is not, and was never, an action to enforce any
of these laws. On its face, § 1988 does not authorize a court to award attorney’s fees except
in an action to enforce the listed civil rights laws. The legislative history of § 1988 supports
the plain import of the statutory language.
Id. at 12.
This means that, under all the statutes listed in § 1988(b), a party who prevails at the
administrative level may not bring a court action solely to recover a fee award. A party who loses
an administrative proceeding, however, and prevails on the merits in court, may recover
attorneys’ fees incurred at both the administrative and court levels. He may recover fees incurred
in an administrative proceeding in either of two situations: if the proceeding was one to enforce
the statute (i.e., was mandatory), or if a “discrete portion of the work product from the
administrative proceedings . . . was both useful and of a type ordinarily necessary to advance the
civil rights litigation. . . .” Id. at 15, quoting Webb, 471 U.S. at 243.
The Court in Crest Street acknowledged that in Gaslight it had said that it would be “anomalous”
to distinguish in this way between a party who sues in court solely to recover fees (after having
prevailed at the administrative level) and one who sues also on the merits. In Crest Street,
however, the Court referred to this comment in Gaslight as “dicta” (id. at 13), presumably
because the plaintiff in Gaslight had filed a court action not solely to recover fees. The Court in
Crest Street added:
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Moreover, we now believe that the paradoxical nature of this result may have been
exaggerated. There are many types of behavior that may lead others to comply with civil
rights laws. For example, an employee, after talking to his lawyer, may choose to discuss
hiring or promotion practices with an employer, and as a result of this discussion the
employer may alter those practices to comply more fully with employment discrimination
laws. In some sense it may be considered anomalous that this employee’s initiative would
not be awarded with attorney’s fees. But an award of attorney’s fees under § 1988 depends
not only on the results obtained, but also on what actions were needed to achieve those
results. It is entirely reasonable to limit the award of attorney’s fees to those parties who, in
order to obtain relief, found it necessary to file a complaint in court.
Id. at 14.
The dissent in Crest Street, apart from disagreeing with the majority’s interpretation of the
language and the legislative history of § 1988(b), argued that the effect of the decision would be
to burden federal courts by causing parties who are not required to exhaust administrative
remedies to “immediately file suit in federal court to protect any possible claim for attorney’s fees
should they subsequently prevail.” Id. at 21. In Gaslight, in fact, the Court had acknowledged
“that if fees were authorized only when the complainant found an independent reason for suing in
federal court under Title VII, such a ground almost always could be found.” 447 U.S. at 66 n.6.
Thus, Crest Street may have little practical import for Title VII.
It may also be argued that the reasoning of Crest Street does not even apply to Title VII. Although
§ 1988(b) was modeled on the attorneys’ fees provision of Title VII, there is a difference in their
language that may be relevant. Section 1988(b) provides that a court may award attorneys’ fees in
any action or proceeding “to enforce” various civil rights statutes. Title VII, by contrast, says that
a court may award fees in any action or proceeding “under this title” (as enacted) or “under this
subchapter” (as codified), in either case referring to Title VII itself. Arguably, a suit solely to
recover fees incurred in an administrative proceeding under Title VII is an action or proceeding
under Title VII, even though a suit solely to recover fees incurred in an administrative proceeding
under Title VI is not an action or proceeding to enforce Title VI. However, this may be an overly
literal reading in that when the attorneys’ fees provision in Title VII refers to an action or
proceeding “under” Title VII, it may not have been intended that it refer to itself, but rather only
to the rest of Title VII. 41
The Supreme Court, in Gaslight, of course, has already interpreted this language and concluded
that it “encompasses a suit solely to obtain an award of attorney’s fees for legal work done in state
and local proceedings.” Yet in Crest Street the Court labeled as “dicta” its statement in Gaslight
that to hold otherwise would be anomalous. It appears uncertain whether the Court would reach
the result it reached in Gaslight in a Title VII case in which a court action was never filed on the
merits.42
41
In Slade for Estate of Slade v. U.S. Postal Service, 952 F.2d 357, 361 (10th Cir. 1991), the court wrote: Here,
Plaintiff’s claim for attorney’s fees was brought pursuant to § 2000e-5(k), which provides for attorney’s fees to the
prevailing party “[i]n any action or proceeding under this subchapter [2000e].” The applicable statute here does not
require that the federal court proceeding be brought to enforce [emphasis supplied by the court] the laws set forth in
§ 2000e. Therefore, Crest Street is not dispositive of the issue of jurisdiction in this case.(By “jurisdiction,” the court
meant subject matter jurisdiction to hear a claim solely for attorneys’ fees.)
42
In Jones v. American State Bank, 857 F.2d 494 (8th Cir. 1988), the court of appeals affirmed a fee award under Title
VII in a suit brought solely to recover fees incurred in a state administrative proceeding.
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Awards of Attorneys’ Fees by Administrative Agencies
An issue that has never reached the Supreme Court is whether administrative agencies themselves
may award attorneys’ fees under any of the civil rights statutes. Title VII’s attorneys’ fees
provision and the statutes modeled on it authorize only “the court” to award fees, but, to the
extent that a court may award fees incurred at the agency level, the question has arisen whether an
agency itself may do so in order to save the parties and a federal court from litigation solely on a
fee claim. 43 Of course, only if a court may award fees incurred at the administrative level will the
question arise whether the agency itself may award such fees. There are two circumstances in
which a court clearly may not award fees incurred at the administrative level: the circumstances
of Crest Street and of Webb.
Crest Street prohibits courts from awarding fees in suits solely to recover fees, at least in suits
under § 1988(b), so it seems clear that agencies may not award fees under § 1988. Assuming that
the reasoning of Crest Street does not apply to some statutes, such as Title VII, Webb still would
preclude courts from awarding fees incurred in non-mandatory administrative proceedings under
such statutes, except to the extent that such fees cover “any discrete portion of the work product
... that was both useful and of a type ordinarily necessary to advance the civil rights litigation.”
However, Title VII provides for mandatory administrative proceedings, so the question arises
under Title VII whether an agency itself may award fees and thereby save the prevailing party
from going to court.
The court of appeals in Crest Street had held that a party who prevailed in an administrative
proceeding under Title VI could bring a court action under § 1988(b) solely to recover fees. The
court of appeals in Crest Street, in addition, citing the fact that § 1988(b) on its face authorizes
only “the court” to award fees, said in dicta that “it follows that plaintiffs must apply to a court for
their fees.” 769 F.2d at 1033 (emphasis in original). However, in Smith v. Califano, 446 F. Supp.
530 (D.D.C. 1978), the court held that an agency could award fees in a Title VII proceeding. It
wrote:
Title VII is a statute in which Congress already has specifically provided for an award of
attorneys’ fees. Although the expression of that exception [to the American Rule] is
contained in the remedial authority of the courts, the rights protected by the courts are the
very same rights the agencies are to protect. Thus, finding authority for the agency also to
award counsel fees to one who prevails at the administrative level would not create a “farreaching” exception to the Rule. Rather, it would make the existing exception applicable
regardless of the stage at which that federal right is protected.
Id. at 532-533.
In addition, the court noted:
[A]lthough Title VII does not expressly state that an agency may award attorneys’ fees, it
does state that [in proceedings brought by federal employees] the agency is to enforce the
Act “through appropriate remedies ... as will effectuate the policies of this section....” 42
U.S.C. § 2000e-16(b) (Supp. V 1975). Because the “make-whole” concept is one of those
43
In a situation in which a party who prevails at the agency level may bring a court action solely to recover fees, the
litigating arm of the agency of course may agree to a settlement with respect to a fee award, thereby avoiding litigation
of the issue and the incurring of additional fees. The question raised here is whether the adjudicating arm of the agency
may award fees over the objections of the litigating arm.
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policies, this provision can be read to permit the agency to award attorneys’ fees, thereby
making whole one who appears before it.
Id. at 533.
This decision was followed in two other Title VII cases.44 However, two other cases in the same
district came to the contrary conclusion, holding that a party who prevails at the agency level
under Title VII must go to court to recover his fees.45 In 1980, the EEOC issued a regulation
(amended in 1987) providing that it or other federal agencies may award attorneys’ fees to federal
employees under Title VII. 29 C.F.R. § 1613.271(d). No reported case appears to have challenged
the EEOC’s authority to promulgate this regulation.
An argument may be made, however, that, if the reasoning of Crest Street applies to Title VII,
then the legality of these regulations would be placed in doubt. For, if the reasoning of Crest
Street applies, which means that courts may not award attorneys’ fees incurred by parties who
prevail at the administrative level, then the only basis for an agency to award fees would be the
“appropriate remedies” provision. It is not clear, however, that Smith v. Califano would have
reached the same result in the absence of the statute’s authorizing courts to award fees. If, under
Crest Street, courts cannot award fees to parties who prevail in administrative proceedings under
Title VII, then to allow agencies to award fees apparently would constitute a “far-reaching”
exception to the American rule. Before an agency may order a litigant to bear his adversary’s
expenses, “it must be granted clear statutory power by Congress.”46 The power to employ
“appropriate remedies” might not be sufficient.
Two lower court cases have addressed the question of the recoverability of fees in administrative
proceedings under the Rehabilitation Act. In Department of Education v. Katherine D., 531 F.
Supp. 517, 531 (D. Hawaii 1982), rev’d on other grounds, 727 F.2d 809 (9th Cir. 1983), cert.
denied, 471 U.S. 1117 (1985), the district court held that it could award attorneys’ fees for
services rendered in connection with both judicial and administrative proceedings under § 504 of
the act. In Watson v. United States Veterans Administration, 88 F.R.D. 267 (C.D. Cal. 1980), a
district court held that the agency itself could award fees under § 501 of the act. The court, citing
Smith v. Califano, held that construing § 501 “to authorize the agency to award attorney’s fees is
more in keeping with the purpose of the statute and the intent of Congress than the contrary
interpretation.” 88 F.R.D. at 269. The court noted that the “‘appropriate remedies’ concept” is
“incorporated in the Rehabilitation Act from Title VII.” Id. at 268.47 Notwithstanding this
decision, if the reasoning of Crest Street precludes courts from awarding fees in suits solely to
recover attorneys’ fees incurred in administrative proceedings under the Rehabilitation Act, then
it apparently would also preclude agencies from awarding fees. However, in 1987, the EEOC
amended the regulation cited above (29 C.F.R. § 1613.271(d)) to authorize federal agencies to
award attorneys’ fees in proceedings under § 501 or § 505 of the Rehabilitation Act.
44
Patton v. Andrus, 459 F. Supp. 1189 (D.D.C. 1978); and Williams v. Boorstin, 451 F. Supp. 1117 (D.D.C. 1978),
rev’d on other grounds, 663 F.2d 109 (D.C. Cir. 1980), cert. denied, 451 U.S. 985 (1981).
45
Noble v. Claytor, 448 F. Supp. 1242 (D.D.C. 1978); Taylor v. Claytor, 15 EPD § 7854 (D.D.C. 1977).
46
Turner v. Federal Communications Commission, 514 F.2d 1354 (D.C. Cir. 1975).
47
The concept is mentioned in § 505(a)(1), 29 U.S.C § 794a(1), which makes available to persons aggrieved by a
violation of § 501 “[t]he remedies, procedures, and rights set forth in” Title VII.
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VII. Awards of Attorneys’ Fees in Civil Rights Cases
All federal civil rights laws permit awards of attorneys’ fees and the major litigation concerning
fee awards has occurred under these laws. Some aspects of these laws have already been
discussed: the dual standard they have been construed to include, the meaning of the term
“prevailing” they contain, and the extent to which they permit awards of fees incurred in
administrative proceedings. This section of the report quotes or summarizes each attorney’s fee
provision applicable to a civil rights law, and discusses significant court decisions not covered in
the discussions of the aspects of these laws just mentioned.
Civil Rights Act of 1964, Title II: Public Accommodations
Title II prohibits discrimination and segregation on the basis of race, color, religion, or national
origin in places of public accommodation such as hotels, restaurants, gasoline stations, theaters,
and other places of exhibition or entertainment, if their operations affect commerce or if their acts
of discrimination or segregation are supported by state action. 42 U.S.C. § 2000a. Title II’s
attorneys’ fees provision, 42 U.S.C. § 2000a-3(b), states:
the court, in its discretion, may allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs, and the United States shall be liable for costs
the same as a private person.48
In addition, the court may appoint an attorney for a complainant. 42 U.S.C. § 2000a-3(a).
Civil Rights Act of 1964, Title III: Public Facilities
Title III gives the Attorney General the authority to bring a civil action on behalf of any person
unable to initiate and maintain appropriate legal proceedings who claims:
that he is being deprived of or threatened with the loss of his right to equal protection of the
laws, on account of his race, color, religion, or national origin, by being denied equal
utilization of any public facility which is owned, operated, or managed by or on behalf of
any State or subdivision thereof, other than a public school or public college, as defined in
section 2000c of this title....
42 U.S.C. § 2000b(a).
In any action under Title III “the United States shall be liable for costs, including a reasonable
attorney’s fee, the same as a private person.” 42 U.S.C. § 2000b-1.
48
Cases under this provision are collected at 16 ALR Fed 621.
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Civil Rights Act of 1964, Title VII: Equal Employment
Opportunities
Title VII prohibits discrimination by employers, employment agencies, and labor organizations
on the basis of race, color, religion, sex, or national origin. Before an individual may bring a civil
action in federal court under Title VII, he must file a charge with the Equal Employment
Opportunity Commission (EEOC), which will attempt to resolve the complaint.49 However, if the
individual alleges discrimination in a state or locality that prohibits it, then federal proceedings
must be deferred until relief through state or local proceedings has been sought. 42 U.S.C.
§ 2000e-5(c). If the matter does end up in federal court, the court may appoint an attorney for the
complainant. 42 U.S.C. § 2000e-5(f)(1). Relief may include injunctions and “such affirmative
action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of
employees, with or without back pay....” 42 U.S.C. § 2000e-5(g).50
Title VII’s attorneys’ fees provision, 42 U.S.C. § 2000e-5(k), provides:
In any action or proceeding under this subchapter the court, in its discretion, may allow the
prevailing party, other than the Commission or the United States, a reasonable attorney’s fee
(including expert fees) as part of the costs, and the Commission and the United States shall
be liable for costs the same as a private person.51
Title VII’s attorneys’ fees provision on its face bars awards in favor of the EEOC or the United
States. In 1964, when the provision was enacted, Title VII did not apply to federal workers, so the
United States at the time could be only a plaintiff in a Title VII suit. The 1972 amendments that
made it possible for the United States to be a defendant under the act did not amend the attorneys’
fees provision, and, in Copeland v. Martinez, 603 F.2d 981 (D.C. Cir. 1979), cert. denied, 444
U.S. 1044 (1980), the issue arose whether an employee who sues the United States may be held
liable for attorneys’ fees. In this case the employee was found to have sued in bad faith, so the
court did not have to decide whether Title VII affirmatively authorizes fee awards to the federal
government as defendant. The court held only “that § 706(k) does not preclude a court from
awarding the United States its attorneys’ fees [under the common law exception] when it has been
sued in bad faith.” Id. at 987.
Of course, as discussed above, even if the United States is entitled to fees as a prevailing
defendant under Title VII in the absence of bad faith on the part of the plaintiff, it may recover
only upon a finding that the plaintiff’s suit was “frivolous, unreasonable, or without foundation.”
Prevailing plaintiffs (other than the United States), in contrast, may recover fees “in all but very
unusual circumstances.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975).
49
Prior to 1979, federal employees filed discrimination charges with the Civil Service Commission (CSC). Pursuant to
Reorganization Plan No. 1 of 1978, the function of the CSC in this regard was transferred to the EEOC by Executive
Order 12106 (44 Fed. Reg. 1053 (1979)). (Reorganization Plan No. 2 of 1978 abolished the CSC.)
50
Title VII has been held not to include compensatory damages; consequently, a teacher who retired before bringing
suit based on discriminatory working conditions could not be a “prevailing party” eligible to recover attorneys’ fees,
although she had proved discrimination. Harrington v. Vandalia-Butler Board of Education, 585 F.2d 192 (6th Cir.
1978).
51
Cases under this provision are collected at 16 ALR Fed 643 and 77 ALR Fed 272.
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Courts have held that in Title VII suits attorneys’ fees may be awarded against state governments
(Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)), and in favor of state governments (Kutska v.
California State College, 564 F.2d 108 (3rd Cir. 1977)).
Fair Housing Act
The Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing
Amendments Act of 1988, P.L. 100-430, prohibits discrimination on the basis of race, color,
religion, sex, handicap, familial status (having children), or national origin in the sale or rental of
housing, the financing of housing, or the provision of brokerage services. 42 U.S.C. §§ 34043606. An aggrieved person may bring a civil action, in which the prevailing party, other than the
United States, may recover reasonable attorneys’ fees and costs, with the United States liable for
such fees and costs to the same extent as a private person. 42 U.S.C. § 3613(c).52 Presumably, the
dual standard that applies to the fee-shifting provisions of other federal civil rights statutes will
apply here. The court may appoint an attorney for the plaintiff. 42 U.S.C. § 3613(b).
In addition, the Secretary of Housing and Urban Development may bring an administrative
proceeding, and the Attorney General may bring a civil action, against a violator. In either case,
the prevailing party, other than the United States, may recover a reasonable attorney’s fee and
costs, except that the United States shall be liable for fees and costs only to the extent provided by
the Equal Access to Justice Act. 42 U.S.C. §§ 3612(p), 3614(d).
Fair Labor Standards Act
The Fair Labor Standards Act, among other things, prohibits employers from discriminating on
the basis of sex in the amount of wages paid employees for equal work, and it prohibits labor
organizations from causing employers to so discriminate. 29 U.S.C. § 206(d). Section 216(b) of
Title 29 provides that in actions to enforce such provision, the court:
shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable
attorney’s fee to be paid by the defendant, and costs of the action.
Age Discrimination in Employment Act of 1967
The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 et seq.,
prohibits, with certain exceptions, employers, employment agencies, and labor organizations from
discriminating on the basis of age against individuals who are at least 40 years old. Section 7(b)
of the act, 29 U.S.C. § 626(b), incorporates the attorneys’ fees provision of the Fair Labor
Standards Act, 29 U.S.C. § 216(b).53
In 1974, a section was added to the ADEA to protect federal employees from age discrimination.
29 U.S.C. § 633a. However, this section provides that other provisions of the ADEA shall not
apply in the case of federal employees (29 U.S.C. § 633a(f)), and the section makes no reference
52
53
Cases under this provision are collected at 38 ALR Fed 164.
See, 24 ALR Fed 808, 862 on this point; see, 99 ALR Fed 30 on fee awards under the ADEA generally.
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to attorneys’ fees. Consequently, it is unsettled whether they may be awarded to federal
employees who prevail at the administrative or the judicial level. 54
The Civil Service Reform Act of 1978 provides for awards of attorneys’ fees “in accordance with
the standards prescribed under § 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(k)” to a
federal “employee or applicant for employment” who is discriminated against “on the basis of
age, as prohibited under §§ 12 and 15 of the Age Discrimination in Employment Act of 1976 (29
U.S.C. 631, 633a).” 5 U.S.C. §§ 7701(g)(2), 2302(b)(1)(B). However, these provisions of the
Civil Service Reform Act authorize only the Merit Systems Protection Board (MSPB), not the
EEOC, to award attorneys’ fees, and federal employees who wish to file age discrimination
complaints at the administrative level ordinarily must do so before the EEOC. The MSPB
becomes involved in age discrimination complaints when it hears appeals of “mixed case”
complaints, which are discrimination complaints that an employee or job applicant raises as an
affirmative defense to an adverse action. 29 C.F.R. § 1613.402.
Equal Credit Opportunity Act
The Equal Credit Opportunity Act, 15 U.S.C. §§ 1691 et seq., makes it unlawful for any person,
business, or governmental agency that regularly extends credit to discriminate against any credit
applicant:
(1) on the basis of race, color, religion, national origin, sex or marital status, or age (provided
the applicant has the capacity to contract); (2) because all or part of the applicant’s income
derives from any public assistance program; or (3) because the applicant has in good faith
exercised any right under the Consumer Credit Protection Act.
Section 1691e(d) provides that in any successful action to enforce the act, “the costs of the action,
together with a reasonable attorney’s fee as determined by the court, shall be added to any
damages awarded....”
Voting Rights Act of 1965
The Voting Rights Act’s attorneys’ fees provision, 42 U.S.C. § 1973l(e), as amended by P.L. 109246 (2006), provides:
In any action or proceeding to enforce the voting guarantee of the fourteenth or fifteenth
amendment, the court, in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee, reasonable expert fees, and other reasonable litigation
expenses, as part of the costs.55
The Voting Accessibility for the Elderly and Handicapped Act, 42 U.S.C. § 1973ee-4(c),
provides:
54
See, e.g., Lewis v. Federal Prison Industries, Inc., 953 F.2d 1277 (11th Cir. 1992); Palmer v. General Services
Administration, 787 F.2d 300 (8th Cir. 1986).
55
Cases under this provision are collected at 68 ALR Fed 206.
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Notwithstanding any other provision of law, no award of attorney fees may be made with
respect to an action under this section, except in any action brought to enforce the original
judgment of the court.
Civil Service Reform Act of 1978
The Civil Service Reform Act of 1978, 5 U.S.C. § 5596(b)(1)(A)(ii), provides:
An employee of an agency who ... is found ... to have been affected by an unjustified or
unwarranted personnel action ... is entitled, on correction of the personnel action, to receive
... reasonable attorney fees related to the personnel action which, with respect to any decision
relating to an unfair labor practice or grievance processed under a procedure negotiated in
accordance with chapter 71 of this title, or under chapter 11 of title I of the Foreign Service
Act of 1980, shall be awarded in accordance with standards established under section
7701(g) of this title.
Section 7701(g) provides:
(1) Except as provided in paragraph (2) of this subsection, the [Merit Systems Protection]
Board, or an administrative law judge or other employee of the Board designated to hear a
case, may require payment by the agency involved of reasonable attorney fees ... if warranted
in the interest of justice....
(2) If an employee or applicant for employment is the prevailing party and the decision is
based on a finding of discrimination prohibited under section 2302(b) of this title, the
payment of attorney fees shall be in accordance with the standards prescribed under section
706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)).
Section 2302(b) provides:
Any employee who has authority to take, direct others to take, recommend, or approve any
personnel action, shall not, with respect to such authority—(1) discriminate for or against
any employee or applicant for employment—
(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section
717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a);
(C) on the basis of sex, as prohibited by section 6(d) of the Fair Labor Standards Act of 1938
(29 U.S.C. 206(d));
(D) on the basis of handicapping conditions, as prohibited under section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791); or
(E) on the basis of marital status or political affiliation as prohibited under any law, rule, or
regulation.
Thus, in the ordinary case, fees may be awarded if “warranted in the interest of justice,” but in
civil rights cases the standards of 42 U.S.C. § 2000e-5(k) are incorporated, which apparently
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means that a prevailing plaintiff should recover fees “in all but very unusual circumstances.”
Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975).56
Age Discrimination Act of 1975
The Age Discrimination Act of 1975, 42 U.S.C. §§ 6101 et seq., prohibits age discrimination in
programs or activities receiving federal, financial assistance. P.L. 95-478, § 401, amended 42
U.S.C. § 6104(e) to provide that “the court shall award the costs of suit, including a reasonable
attorney’s fee, to the prevailing plaintiff.”
Civil Rights of Institutionalized Persons Act
Section 3 of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997a, provides that
the Attorney General may institute a civil action against any state or political subdivision of a
state or employee thereof whom he has reasonable cause to believe is engaging in a pattern or
practice of subjecting persons residing in or confined to an institution (which includes, among
other things, mental institutions, prisons, and nursing homes) to egregious or flagrant conditions
which deprive such persons of any rights, privileges, or immunities conferred by the Constitution
or laws of the United States. In any such action, “the court may allow the prevailing party, other
than the United States, a reasonable attorney’s fee against the United States as part of the costs.”
42 U.S.C. § 1997a(b).
Section 5 of the act, 42 U.S.C. § 1997c, provides that the Attorney General may intervene in any
private action commenced in any federal court seeking relief from a pattern or practice of
egregious or flagrant conditions which deprive persons in institutions of any rights, privileges, or
immunities secured by the Constitution or laws of the United States. (This section does not appear
to create a new private right of action; rather, it contemplates actions under existing law, such as
42 U.S.C. § 1983.) Section 5(d) reads:
In any action in which the United States joins as an intervenor under this section, the court
may allow the prevailing party, other than the United States, a reasonable attorney’s fee
against the United States as part of the costs. Nothing in this subsection precludes the award
of attorney’s fees available under any other provisions of the United States Code.
The conference report that accompanied this law explains:
In both the initiation and intervention sections, the Act makes clear the liability of the United
States to opposing parties for attorneys’ fees whenever it loses. The award is discretionary
with the court, and it is intended that the present standards used by courts under the civil
rights laws will apply. However, it is not intended that recovery be allowed from the United
States, as a plaintiff, by another plaintiff or plaintiff-intervenor. The award is to be made to
an opposing party who prevails.57
Thus, in actions instituted by or intervened in by the Attorney General, fees may be awarded
against the United States only to prevailing defendants, and only if the suit was, in the words of
Christiansburg, supra, 434 U.S. at 421, “frivolous, unreasonable, or without foundation.”
56
57
See, Annotation, Attorneys’ Fees Under Back Pay Act (5 USCS § 5596), 122 ALR Fed 465.
H.Rept. 96-897, 96th Cong., 2nd sess., 12-13 (1980), reprinted in 1980 U.S.C.C.A.N. 832, 837.
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Prevailing plaintiffs, other than the United States, apparently may recover attorneys’ fees against
defendants if awards are authorized under a statute such as the Civil Rights Attorney’s Fees
Awards Act of 1976 or the common law bad faith exception to the American rule.
In 1996, the Prison Litigation Reform Act, P.L. 104-134, § 803, amended § 7 of the Civil Rights
of Institutionalized Persons Act, 42 U.S.C. § 1997e, to provide that no prisoner may bring an
action with respect to prison conditions, under 42 U.S.C. § 1983 or any other federal law, “until
such administrative remedies as are available are exhausted.” It also limited the right to recover
attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988(b),
as detailed below in the discussion of that statute.
Rehabilitation Act of 1973
Section 501 of the Rehabilitation Act of 1973 provides protection from employment
discrimination on the basis of handicap by federal executive branch agencies. 29 U.S.C. § 791.
Section 504, as amended in 1978, prohibits discrimination solely by reason of handicap under
programs receiving federal financial assistance or under programs conducted by executive
agencies or by the Postal Service. 29 U.S.C. § 794. Section 505, which was added in 1978,
provides that specified remedies, procedures, and rights set forth in Title VII of the Civil Rights
Act of 1964 shall be available with respect to complaints under § 501, and the remedies,
procedures, and rights set forth in Title VI of the Civil Rights Act of 1964 shall be available with
respect to complaints under § 504. Section 505 also provides that, in any “action or proceeding”
under the Rehabilitation Act, “the court, in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee as part of the costs.” 29 U.S.C. § 794a.
Individuals with Disabilities Education Act
An attorneys’ fees provision was added to the Education of the Handicapped Act by the
Handicapped Children’s Protection Act of 1986, P.L. 99-372, 20 U.S.C. § 1415(e)(4). This statute
was enacted to overturn Smith v. Robinson, 468 U.S. 992 (1984), which precluded fee awards
under the EHA. The plaintiffs in Smith v. Robinson had sued on behalf of a handicapped child
who allegedly had been deprived of his right to a free special education. They had sued under
state law and under three federal statutes: EHA, § 504 of the Rehabilitation Act of 1973 (29
U.S.C. § 794), and 42 U.S.C. § 1983. The EHA guarantees the right to a free appropriate public
education in states that receive grants under the statute; the Rehabilitation Act prohibits
discrimination on the basis of handicap in any program or activity that receives federal financial
assistance; and § 1983 permits suits against state or local officials if, under color of state law, they
deprive someone of a federal constitutional or statutory right.
The EHA prior to the 1986 Act did not authorize awards of attorneys’ fees, but the Rehabilitation
Act did, and 42 U.S.C. § 1988(b) permits fee awards in § 1983 cases. The plaintiffs in Smith v.
Robinson, after prevailing on the merits of their case, asked the court to award fees pursuant to
either the Rehabilitation Act or § 1988(b). The Supreme Court held that they were not entitled to
relief under the Rehabilitation Act or § 1983, and therefore were not entitled to a fee award under
either statute. Although these statutes on their face appear to apply to cases of handicapped
children who are denied their right to a free appropriate public education, the Court found that, in
cases in which these statutes do not provide rights greater than those available under the EHA,
Congress intended the EHA to be the exclusive remedy.
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Congress, therefore, added 20 U.S.C. § 1415(i)(3)(B) to the EHA, which, as amended, provides:
In any action or proceeding brought under this section, the court, in its discretion, may award
reasonable attorneys’ fees as part of the costs. ...
Administrative proceedings are mandatory under the EHA, and the legislative history makes clear
that courts may award fees incurred at the administrative and the judicial levels, including when a
party prevails at the administrative level and brings a court action solely to recover fees.
Therefore, the Supreme Court’s decisions in neither Webb nor Crest Street appear to preclude a
court from awarding attorneys’ fees incurred at the administrative level. The attorneys’ fees
provision prohibits bonuses and multipliers (discussed below under “Determining a Reasonable
Attorneys’ Fee”), and contains a section based on Rule 68 of the Federal Rules of Civil Procedure
(discussed below under “Rule 68 of the Federal Rules of Civil Procedure”). 58
In Arlington Central School District Board of Education v. Murphy, 548 U.S. 291 (2006), the
Supreme Court held that IDEA’s attorneys’ fees provision does not authorize prevailing parents to
recover fees for services rendered by experts in IDEA actions. In the case of statutes, such as
IDEA, that are enacted pursuant to the Spending Clause of the Constitution, Art. I, § 8, cl. 1,
“when Congress attaches condition to a State’s acceptance of federal funds, the conditions must
be set out ‘unambiguously,’” to ensure that recipients of the funds agree to the conditions
“voluntarily and knowingly.” Id. at 296. IDEA’s attorneys’ fees “provision does not even hint that
acceptance of IDEA funds makes a State responsible for reimbursing prevailing parents for
services rendered by experts.” Id. at 297.
Americans with Disabilities Act of 1990
The ADA, 42 U.S.C. §§ 12101 et seq., provides protection against discrimination on the basis of
disability in employment, public services, public accommodations, and telecommunications. It
supplements the Rehabilitation Act of 1973 by extending such protection, to varying degrees, to
Congress and the legislative branch agencies, to the states, 59 and to the private sector. Section 505
of the ADA, 42 U.S.C. § 12205, provides:
In any action or administrative proceeding commenced pursuant to this Act, the court or
agency, in its discretion, may allow the prevailing party, other than the United States, a
reasonable attorney’s fee, including litigation expenses, and costs, and the United States shall
be liable for the foregoing the same as a private individual.
58
For additional information, see, CRS Report RS22055, The Individuals with Disabilities Education Act (IDEA):
Attorneys’ Fees Provisions in P.L. 108-446, by (name redacted).
59
Eleventh Amendment immunity (discussed in ch. IX of this report) is explicitly waived by § 502 of the ADA, 42
U.S.C. § 12202. In Tennessee v. Lane, 541 U.S. 509 (2004), the Supreme Court held that Title II of the ADA, which
makes the ADA applicable to the states, constitutes a valid exercise of Congress’ authority under section 5 of the
Fourteenth Amendment insofar as it requires the states to provide access to their courts.
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Civil Rights Attorney’s Fees Awards Act of 1976
The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988(b), provides:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983,
1985, and 1986 of this title, title IX of P.L. 92-318, the Religious Freedom Restoration Act
of 1993, the Religious Land Use and Institutionalized Persons Act of 2000, title VI of the
Civil Rights Act of 1964, or section 40302 of the Violence Against Women Act of 1994, the
court, in its discretion, may allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s judicial capacity such officer
shall not be held liable for any costs, including attorney’s fees, unless such action was clearly
in excess of such officer’s jurisdiction.60
In 1996, the Prison Litigation Reform Act, P.L. 104-134, § 803, amended § 7 of the Civil Rights
of Institutionalized Persons Act, 42 U.S.C. § 1997e(d), to provide:
(1) In any action brought by a prisoner ... fees shall not be awarded [under § 1988(b)], except
to the extent that—
(A) the fee was directly and reasonably incurred in proving an actual violation of the
plaintiff’s rights protected by a statute pursuant to which a fee may be awarded under
[§ 1988(b)]; and
(B)(i) the amount of the fee is proportionately related to the court ordered relief for the
violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief ordered
for the violation.
(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a
portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of
attorney’s fees awarded against the defendant. If the award of attorney’s fees is not greater
than 150 percent of the judgment, the excess shall be paid by the defendant.
(3) No award of attorney’s fees in an action described in paragraph (1) shall be based on an
hourly rate greater than 150 percent of the hourly rate established under section 3006A of
title 18, United States Code, for payment of court-appointed counsel.
(4) Nothing in this subsection shall prohibit a prisoner from entering into an agreement to
pay an attorney’s fee in an amount greater than the amount authorized under this
subsection....
In Martin v. Hadix, 527 U.S. 343 (1999), the Supreme Court held that 42 U.S.C. § 1997e(d)(3)
“limits attorney’s fees with respect to postjudgment monitoring services performed after the
PLRA’s [Prison Litigation Reform Act’s] effective date but it does not so limit fees for
postjudgment monitoring performed before the effective date.” In Johnson v. Daley, 339 F.3d 582
(7th Cir. 2003), the Seventh Circuit upheld the constitutionality of the Prison Litigation Reform
Act’s discrimination against prisoners as compared with other plaintiffs, and cited other circuits
that had reached the same result.
60
As for the citation of this statute, see, note 10, supra. Cases under § 1988(b) are collected at 43 ALR Fed 243, 69
ALR Fed 712, and 118 ALR Fed 1. The exception for judicial officers was added by P.L. 104-317, § 309(b) (discussed
in ch. IX of this report).
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The 11 statutes under which § 1988(b) authorizes fee awards are now examined in the order listed
in § 1988(b).
42 U.S.C. § 1981
This section provides:
All persons within the jurisdiction of the United States shall have the same right in every
State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to
the full and equal benefit of all laws and proceedings for the security of persons and property
as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981a
This section, enacted by the Civil Rights Act of 1991, P.L. 102-166, § 102, provides for punitive
damages in actions for unlawful intentional employment discrimination under specified statutes.
42 U.S.C. § 1982
This section provides:
All citizens of the United States shall have the same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and
personal property.
42 U.S.C. § 1983
This section provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory, subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution, and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. 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.61
Section 1983 permits suits against state and local officials, as individuals, if, under color of state
law, they deprive someone of a federally protected right. The Supreme Court has held that a state
is not a “person” subject to suit under § 1983. Will v. Michigan Department of State Police, 491
U.S. 58 (1989). Furthermore, a suit for damages against a state official acting in his or her official
capacity “is no different from a suit against the State itself.” Id. at 71.
61
The exception for judicial officers was added by P.L. 104-317, § 309(c).
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However, “a State official in his or her official capacity, when sued for injunctive relief, would be
a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as
actions against the State.’” Id. at 71 n.10. In such suits, attorneys’ fees may be awarded against a
state under § 1988(b), but not against the state official personally, except under the common law
bad faith standard. Hutto v. Finney, 437 U.S. 678, 692 n.19, 693, 700 (1978) (discussed in detail
in section IX of this report).
State officials may be sued in their individual capacities for damages under § 1983. Hafer v.
Melo, 502 U.S. 21 (1991). In such suits, a state official may be held liable for attorneys’ fees even
in the absence of bad faith. However, the state will not be liable for fees. Kentucky v. Graham,
473 U.S. 159 (1985).
Section 1983 permits suits against local governments, provided that the deprivation of rights was
based on official policy and not merely respondeat superior (the common law liability of
employers for acts of employees). Monell v. Department of Social Services of the City of New
York, 436 U.S. 658 (1978). If a local official is sued under § 1983 in his official capacity, the
public entity is liable, “provided, of course, the public entity received notice and an opportunity to
respond.” Brandon v. Holt, 469 U.S. 464, 471-472 (1985).
Maine v. Thiboutot, 448 U.S. 1 (1980), was a case brought under § 1983 in a state court
challenging the state’s method of computing benefits under a federally funded public assistance
program. The state argued that § 1983 does not provide for suits brought to enforce purely
statutory, non-constitutional claims, but the Supreme Court held that “the phrase ‘and laws,’ as
used in § 1983, means what it says.” Id. at 4. In other words, according to this case, suits may be
brought under § 1983 to enforce statutory as well as constitutional claims—even statutory claims
unrelated to civil rights and even claims arising under statutes that do not themselves contain an
express or implied private right of action. And, the Court held, under §1988(b), state courts as
well as federal courts may award attorneys’ fees in § 1983 suits.62
In Dennis v. Higgins, 498 U.S. 439 (1991), the Supreme Court held that suits against state
officials for violation of the Commerce Clause (Art. I, § 8, cl. 3) may be brought under § 1983.
The Court found that the Commerce Clause confers a right “to engage in interstate trade free from
restrictive state regulation” (id. at 448), and that this right is protected by § 1983.
There may be another limitation upon awards of attorneys’ fees under § 1988(b) in § 1983 cases.
In Maher v. Gagne, 448 U.S. 122 (1980), which the Supreme Court decided the same day as
Thiboutot, the Court left open the question whether the Eleventh Amendment prohibits federal
courts from awarding fees in wholly-statutory, non-civil rights cases. The impact of the Eleventh
Amendment on fee awards against the states is considered in section IX of this report, but brief
mention of it will be made here in order to explain more fully the holdings of Maine v. Thiboutot
and Maher v. Gagne.
The Eleventh Amendment generally prohibits suits for damages in federal court against a state.
Notwithstanding the Eleventh Amendment, however, a state may be sued for damages in federal
62
Subsequently, the Supreme Court limited the scope of Thiboutot, finding exceptions to the rule that § 1983 provides
a cause of action for violations of federal statutes as well as the Constitution. See, e.g., Livadas v. Bradshaw, 512 U.S.
107, 132 (1994); Suter v. Artist M., 503 U.S. 347, 355 (1992); Wilder v. Virginia Hospital Association, 496 U.S. 498,
508 (1990); Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 20 (1981);
Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 15 (1981).
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court for violations of laws enacted to enforce the Fourteenth Amendment. Section 1983, and
civil rights laws generally, were enacted to enforce the Fourteenth Amendment. Maine v.
Thiboutot, however, held that § 1983 permits assertion of claims arising under both civil rights
and non-civil rights laws. This raises the question whether claims arising under non-civil rights
laws should be considered as having been brought under a law enacted to enforce the Fourteenth
Amendment merely because the laws under which they arise may be enforced through the use of
§ 1983. The Court did not have to answer this question in Maine v. Thiboutot because that case
was brought in state court, where the Eleventh Amendment does not apply.
Maher v. Gagne the Court also avoided the question, but for a different reason. This case was
brought in federal court, and, like Maine v. Thiboutot, it charged a state with having violated a
non-civil rights law. However, the plaintiff in Maher v. Gagne also raised a constitutional claim,
and that was decisive. Prior to trial, the case was settled favorably for the plaintiff, without the
constitutional issue’s being reached. The state argued that the Eleventh Amendment prohibited a
fee award because the case involved a purely statutory, non-civil rights claim. The Court held,
however, that, under § 1988(b), a federal court, notwithstanding the Eleventh Amendment, may
award attorneys’ “fees in a case in which the plaintiff prevails on a wholly statutory, non-civil
rights claim pendent to a substantial constitutional claim or in one in which both a statutory and a
substantial constitutional claim are settled favorably to the plaintiff without adjudication.” Id. at
132. Because of the constitutional claim (which was held to be substantial), the Court found
“there is no need to reach the question whether a federal court could award attorney’s fees against
a State based on a statutory, non-civil-rights claim.” Id. at 130.63
42 U.S.C. § 1985
This section has three subsections. Subsection (a) gives to “any person” a right to be free from a
conspiracy “to prevent, by force, intimidation, or threat” the acceptance of a federal office “or
from discharging any duties thereof.” Subsection (b) gives any person who is a party or a witness,
or a grand or petit juror, in any court of the United States a right to be free from a conspiracy to
obstruct justice. Subsection (c) protects persons from deprivations “of equal protection of the
laws, or of equal privileges and immunities under the laws.”
42 U.S.C. § 1986
This section provides that any person who has knowledge that any of the wrongs mentioned in 42
U.S.C. § 1985 are about to be committed, and has the power to prevent or aid in preventing the
commission of such wrongs, who neglects or refuses so to do, shall be liable to the party injured
for all damages caused by the wrongful act which such person by reasonable diligence could have
prevented.
Title IX of P.L. 92-318
This statute, codified at 20 U.S.C. §§ 1681 et seq., prohibits discrimination on the basis of sex,
blindness, or severe visual impairment under any educational program or activity receiving
federal assistance. In Cannon v. University of Chicago, 441 U.S. 667 (1979), the Supreme Court
held that Title IX contains an implied private right of action. In Franklin v. Gwinnett County
63
See, text accompanying note 60, supra.
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Public Schools, 503 U.S. 60 (1992), the Court added that this right includes the remedy of
monetary damages. In Fitzgerald v. Barnstable School Committee, 129 S. Ct. 788 (2009), the
Court held that the existence of a right of action under Title IX does not preclude suits under 42
U.S.C. § 1983 alleging gender discrimination in schools in violation of the Equal Protection
Clause.
Religious Freedom Restoration Act of 1993
This statute (P.L. 103-141, 42 U.S.C. §§ 2000bb et seq.), was enacted in response to Employment
Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990), in which the
Supreme Court held that religiously neutral laws (in this case a law proscribing the use of peyote)
usually may be applied without regard to any burden they place on the exercise of religion. In
other words, the First Amendment’s guarantee of the free exercise of religion ordinarily mandates
no religious exemptions from otherwise valid laws. The Religious Freedom Restoration Act
provides statutory protection in lieu of constitutional protection. It prohibits government at all
levels from substantially burdening a person’s exercise of religion unless the government
demonstrates that the burden is in furtherance of a compelling governmental interest and is the
least restrictive means of furthering that interest. The act contains an express private right of
action.64
The Religious Land Use and Institutionalized Persons Act of 2000
This statute (P.L. 106-274, 42 U.S.C. §§ 2000cc et seq.) provides that “[n]o [state or local]
government shall impose or implement a land use regulation in a manner that imposes a
substantial burden on the religious exercise of a person, including a religious assembly or
institution, unless the government demonstrates that imposition of the burden on that person,
assembly, or institution—(A) is in furtherance of a compelling governmental interest; and (B) is
the least restrictive means of furthering that compelling governmental interest.” This prohibition
applies if the burden is imposed in a program or activity that receives federal financial assistance,
affects interstate commerce, or is imposed through a process that permits the government to make
individualized assessments of the proposed uses for the property involved.
The statute also provides that “[n]o [state or local] government shall impose a substantial burden
on the religious exercise of a person residing in or confined to an institution, as defined in section
2 of the Civil Rights of Institutionalized Persons Act (42 U.S.C. 1997) ... unless the government
demonstrates that imposition of the burden on that person—(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.” This prohibition applies if the burden is imposed in a program or activity
that receives federal financial assistance or affects interstate commerce.
The statute also provides that “[n]o [state or local] government shall impose or implement a land
use regulation in a manner that treats a religious assembly or institution on less than equal terms
with a nonreligious assembly or institution,” or “that discriminates against any assembly or
institution on the basis of religion or religious denomination.”
64
See, CRS Report 97-795, The Religious Freedom Restoration Act: Its Rise, Fall, and Current Status, by (name red
acted). In
City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court declared RFRA unconstitutional as
applied to the states, on the ground that Congress had exceeded its power under § 5 of the Fourteenth Amendment in
applying it to the states.
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Civil Rights Act of 1964, Title VI: Federally Assisted Programs
This statute, codified at 42 U.S.C. §§ 2000d et seq., provides:
No person in the United States shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.
In Guardians Association v. Civil Service Commission of the City of New York, 463 U.S. 582
(1983), a majority of the Justices indicated that Title VI contains a private right of action.
Violence Against Women Act of 1994
Section 40302 of this act provides that “[a] person ... who commits a crime of violence motivated
by gender ... shall be liable to the party injured, in an action for the recovery of compensatory and
punitive damages, injunctive and declaratory relief, and such other relief as a court may deem
appropriate.”65
VIII. Awards of Attorneys’ Fees in Tax Cases
Section 7430 of the Internal Revenue Code, 26 U.S.C. § 7430, authorizes the Internal Revenue
Service and federal courts to award attorneys’ fees of up to $125 an hour in tax cases in which the
United States fails to establish that its position in the proceedings was substantially justified. In
this respect, § 7430 is similar to EAJA, discussed above. In other respects, however, it is
different, and the law governing awards of attorneys’ fees in tax cases has undergone multiple
changes since Congress first authorized fee-shifting in tax cases in 1976.
Awards of attorneys’ fees in tax cases were first permitted by the Civil Rights Attorney’s Fees
Awards Act of 1976, 42 U.S.C. § 1988(b), which authorized federal courts to award attorneys’
fees to a prevailing party, other than the United States, “in any civil action or proceeding, by or on
behalf of the United States of America, to enforce, or charging a violation of, a provision of the
United States Internal Revenue Code.” This provision, commonly known as the “Allen
amendment,” had little effect because of its limitation to tax cases brought “by or on behalf of the
United States.” Although in several circumstances the United States may bring suit under the
Internal Revenue Code, in the vast majority of tax cases the taxpayer is the plaintiff. See Key
Buick Company v. Commissioner of Internal Revenue, 613 F.2d 1306 (5th Cir. 1980). Even in
those cases that are brought by or on behalf of the United States in which the taxpayer is the
defendant, a prevailing defendant is entitled to fees under § 1988(b) only upon a finding that the
action is “meritless in the sense that it is groundless or without foundation.” Hughes v. Rowe, 449
U.S. 5, 14 (1980).
The Equal Access to Justice Act (EAJA), which took effect October 1, 1981, amended § 1988(b)
to remove its authorization for awards of attorneys’ fees in tax cases. EAJA instead itself
authorized federal courts to award attorneys’ fees against the United States in tax cases, except
65
Section 40302 is part of the Civil Rights Remedies for Gender-Motivated Violence Act, which is Subtitle C of the
Violence Against Women Act of 1994, which is part of Title IV of the Violent Crime Control and Law Enforcement
Act of 1994, P.L. 103-322.
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those brought in Tax Court. This exception had not been explicit in the act, but a committee report
indicated that the courts empowered by the act to award attorneys’ fees “are those defined in
section 451 of title 28,” and the Tax Court is not among them. 66 Apart from this, awards of
attorneys’ fees in tax cases could be awarded under the same conditions as other awards against
the United States under the EAJA: a prevailing plaintiff whose net worth was within the
prescribed limits was entitled to an award up to $75 per hour (or more if a special factor justified
a higher fee) unless the United States proved that its position was substantially justified or that
special circumstances made an award unjust.
Next, § 292 of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), P.L. 97-248, made
the EAJA inapplicable to tax cases and enacted § 7430 of the Internal Revenue Code. Section
7430 authorized fee awards in federal courts, including Tax Court, placed a cap of $25,000 on fee
awards, and authorized awards only if the taxpayer proved that the position of the United States
was “unreasonable.” It contained no limits on hourly rates or the net worth of eligible plaintiffs.
Section 7430 sunset, but was reenacted with amendments by § 1551 of the Tax Reform Act of
1986, P.L. 99-514. Then, in 1988, P.L. 100-647, §6239, amended § 7430 to apply in administrative, as well as court, proceedings.
The 1986 Act, while not placing tax cases back within the EAJA, amended § 7430 to make it
more like the EAJA. Section 7430, as amended in 1988 and 1996, provides that, in any
administrative or court proceeding brought by or against the United States, in connection with the
determination, collection, or refund of any tax, interest, or penalty under the Internal Revenue
Code, the prevailing party, other than the United States or a creditor of the taxpayer, may be
awarded litigation costs, including reasonable attorneys’ fees. Section 7430 contains the same
limitations as the EAJA on the net worth of eligible plaintiffs (see § 7430(c)(4)(A)(ii), as
renumbered by P.L. 104-168, § 701(a)), and it originally contained the same $75 cap on hourly
rates. However, in 1996, P.L. 104-121 raised EAJA’s rate to $125, and P.L. 104-168, § 702, raised
§ 7430’s to $110, with cost of living increases after 1996. In 1998, P.L. 105-206, § 3101, raised
§ 7430’s cap to $125, without amending the language authorizing cost of living increases after
1996. The IRS set the fee at $160 per hour for calendar year 2006, and $170 per hour for calendar
years 2007 and 2008. Rev. Proc. 2005-70, 2006-53, 2007-66.
As under the EAJA, a party is not eligible for a fee award “if the United States establishes that the
position of the United States in the proceeding was substantially justified.” 26 U.S.C. §
7430(c)(4)(B)(i). (Prior to enactment of this provision by P.L. 104-168, § 701(b), the burden of
proof as to this issue was on the taxpayer.) Unlike the EAJA, § 7430 does not allow the
government to avoid a fee award where “special circumstances make an award unjust.”
Section 6673(a) of the Internal Revenue Code, 26 U.S.C. § 6673(a), as amended by P.L. 101-239,
§ 7731(a), allows the Tax Court to impose upon a taxpayer a penalty of up to $25,000 if it finds
that—
(A) proceedings before it have been instituted or maintained by the taxpayer primarily for
delay,
(B) the taxpayer’s position in such proceedings is frivolous or groundless, or
(C) the taxpayer unreasonably failed to pursue available administrative remedies.
66
H.Rept. 96-1418, 96th Cong., 2nd sess., 17 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4996.
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Section 6673(a) also allows the Tax Court to require any attorney who unreasonably and
vexatiously multiplies the proceedings in any case to pay personally the excess costs, expenses,
and attorneys’ fees reasonably incurred because of such conduct. If the attorney is appearing on
behalf of the IRS, then the United States must pay the amount awarded.
Section 6673(b) allows the court to impose upon a taxpayer a penalty of up to $10,000
“[w]henever it appears to the court that the taxpayer’s position in proceedings ... under section
7433 is frivolous or groundless....” Section 7433 authorizes taxpayers to sue the United States in
federal district court if an Internal Revenue Service officer or employee “recklessly or
intentionally disregards” any provision of the Internal Revenue Code. Under § 7433, a prevailing
taxpayer may recover up to $100,000 of “(1) actual, direct economic damages sustained as a
proximate result of the reckless or intentional actions of the officer or employee, and (2) the costs
of the action.” Awards of attorneys’ fees are already provided for by § 7430.
IX. Awards of Attorneys’ Fees Against the States
Article III, § 2, of the United States Constitution provides that the judicial power of the United
States (i.e., federal court jurisdiction) shall extend to controversies between a state and citizens of
another state. The Eleventh Amendment modifies this section by providing that the judicial power
of the United States shall not be construed to extend to any suit against a state by citizens of
another state or of a foreign state. In Hans v. Louisiana, 134 U.S. 1 (1890), the Supreme Court
construed the Eleventh Amendment to prohibit a citizen from suing even his own state in federal
court.67 In Alden v. Maine, 527 U.S. 706 (1999), the Supreme Court held that the Eleventh
Amendment prevents Congress from authorizing private suits against a state, even in its own
courts, without the state’s consent. Notwithstanding the Eleventh Amendment, a state may
consent to suit by its citizens or citizens of other states. Missouri v. Fiske, 290 U.S. 18, 24 (1933).
In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court held that federal courts may enjoin
state officials as individuals from enforcing state laws that violate the United States
Constitution.68 The Court reasoned that an official who attempts such action “comes into conflict
with the superior authority of that Constitution, and he is in that case stripped of his official or
representative character and is subject in his person to the consequences of his individual
conduct.” Id. at 159-160. One commentator noted:
The idea that the court restrained the individual rather than the state was, of course, pure
fiction, since the state could not act other than through its officials. But through this fiction
the Court apparently sought to guarantee the nation’s authority to limit state action.69
In Edelman v. Jordan, 415 U.S. 651 (1974), the Supreme Court explicitly limited the types of
relief that may be granted under the theory of Ex parte Young. The plaintiffs in Edelman had sued
state officials, alleging that the officials were administering a welfare program in a manner
inconsistent with various federal regulations. The district court found for the plaintiffs and
67
Dissenting in Dellmuth v. Muth, 491 U.S. 223, 233 (1989), Justices Brennan, Marshall, Blackmun, and Stevens
expressed the view that Hans v. Louisiana should be overruled.
68
In subsequent cases, the Court has indicated that federal courts may also enjoin state officials from enforcing state
laws that violate federal laws or regulations. See, e.g., Edelman v. Jordan, discussed in the text below.
69
Attorneys’ Fees and the Eleventh Amendment, 88 Harvard Law Review 1875, 1879 (1975).
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ordered the state officials to comply with federal regulations in the future and to disburse all
benefits wrongfully withheld in the past. The court of appeals affirmed. The Supreme Court
affirmed the prospective portion of the district court’s order, but reversed the retroactive portion
of the order, holding that because the award “must inevitably come from the general revenues of
the State of Illinois,” it “resembles far more closely the monetary award against the State itself ...
than it does the prospective injunctive relief awarded in Ex parte Young.” Id. at 665. The Court
acknowledged that “the difference between the type of relief barred by the Eleventh Amendment
and that permitted under Ex parte Young will not in many instances be that between day and
night.” Id. at 667. This is evidenced by the fact that the prospective portion of the district court’s
order, as well as the retroactive portion, necessarily required the payment of state funds, but this
the Court termed a permissible “ancillary effect” of the prospective order.70
In Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976), the Supreme Court lessened the importance of
its ruling in Edelman by holding that the Eleventh Amendment is “necessarily limited by the
enforcement provisions of § 5 of the Fourteenth Amendment.” In Fitzpatrick the plaintiffs had
sued a state official under Title VII of the Civil Rights Act of 1964, which was enacted under § 5
of the Fourteenth Amendment and which includes a fee-shifting provision. Like the plaintiffs in
Edelman, the plaintiffs in Fitzpatrick had sought prospective injunctive relief and retroactive
benefits; in addition, in Fitzpatrick they had sought attorneys’ fees. The district court awarded
only the prospective relief, holding that the other relief was barred by Edelman. The court of
appeals agreed that Edelman barred an award of retroactive benefits, but held that an award of
attorneys’ fees was a permissible ancillary benefit.
The Supreme Court did not decide whether an award of attorneys’ fees constituted an
impermissible retroactive benefit or a permissible ancillary benefit. Instead, it reversed the denial
of retroactive benefits, holding that neither they nor an award of attorneys’ fees were barred in
situations in which Congress, under § 5 of the Fourteenth Amendment, had provided for suits
against states or state officials. The Supreme Court held, in other words, that the constitutional
power of Congress to enforce “by appropriate legislation” the Fourteenth Amendment was
intended to supersede the Eleventh Amendment and allow congressionally authorized suits (and
awards of attorneys’ fees) against both states and state officials.
In Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985), the Supreme Court held “that
Congress may abrogate the States’ constitutionally secured immunity from suit in federal court
only by making its intention unmistakably clear in the language of the statute.” Subsequently,
Congress made explicit that states are not immune under the Eleventh Amendment from suits in
federal court under any “Federal statute prohibiting discrimination by recipients of Federal
financial assistance.” 42 U.S.C. § 2000d-7.71
70
In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106, 121 (1984), the Supreme Court held “that
Young and Edelman are inapplicable in a suit against state officials on the basis of state law.... [T]his principle applies
as well to state-law claims brought into federal court under pendent jurisdiction.” In other words, the Eleventh
Amendment prohibits a state-law claim against state officials from being brought in federal court, even if it is joined
with a federal-law claim. This has caused some state courts to refuse to “hear claims under 42 U.S.C. § 1983 (1982)
that seek an award of attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976 (section 1988).”
Wilbur, Concurrent Jurisdiction and Attorney’s Fees: The Obligation of State Courts to Hear Section 1983 Claims,
134 University of Pennsylvania Law Review 1207 (1986).
71
In Dellmuth v. Muth, 491 U.S. 223, 232 (1989), the Court held that the Education of the Handicapped Act did “not
evince an unmistakably clear intention to abrogate the States’ constitutionally secured immunity from suit [in federal
court].” This decision apparently applied only to suits alleging violations that occurred before 42 U.S.C. § 2000d-7
took effect in 1986. See, id. at 228-229. Yet, in 1990, P.L. 101-476, § 103, amended the Education of the Handicapped
(continued...)
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In Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), the Supreme Court held that Congress also
has the authority to override states’ Eleventh Amendment immunity when legislating pursuant to
the Commerce Clause. However, in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72 (1996),
the Supreme Court overruled Pennsylvania v. Union Gas Co., writing: “Even when the
Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh
Amendment prevents congressional authorization of suits by private parties against unconsenting
States.” The Court noted, however, that “an individual may [still] obtain injunctive relief under
Ex parte Young in order to remedy a state officer’s ongoing violation of federal law.” Id. at 72
n.16.
In Alden v. Maine, 527 U.S. 706, 712 (1999), the Supreme Court held “that the powers delegated
to Congress under Article I of the United States Constitution do not include the power to subject
nonconsenting States to private suits for damages in state courts.” This decision continues to
allow the federal government to sue the states in federal or state courts, and continues to allow
private suits for damages in state courts under statutes enacted pursuant to the Fourteenth
Amendment.72
In Hutto v. Finney, 437 U.S. 678 (1978), the Supreme Court affirmed two awards of attorneys’
fees against the State of Arkansas: a $20,000 award by a federal district court and a $2,500 award
for services on appeal by the Court of Appeals for the Eighth Circuit. The district court based its
award on the bad faith exception to the American rule. The court of appeals affirmed this award
on the basis of the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988(b), which
had been enacted while the appeal was pending, although the court of appeals noted that the
award would have been justified under the bad faith exception. 548 F.2d 740, 742 n.6.
Because § 1988(b) is a statute enacted pursuant to § 5 of the Fourteenth Amendment, and
Fitzpatrick held that the Eleventh Amendment does not apply to such statutes, the Supreme Court
apparently could have affirmed the district court fee award in Hutto on the basis of § 1988(b)
merely by finding that § 1988(b) permitted awards of attorneys’ fees against the states. The Court
chose, however, to affirm on the basis of the bad faith exception. As the bad faith exception is a
common law rule, not enacted pursuant to a statute that abrogates Eleventh Amendment
immunity, the Court had to address the Eleventh Amendment question. It held that the district
court award served the same purpose as a remedial fine imposed for civil contempt and did not
constitute a retroactive monetary award, and therefore was not barred by the Eleventh
Amendment under Edelman.
In Missouri v. Jenkins, 491 U.S. 274, 280 (1989), the Supreme Court made clear that the “holding
of Hutto ... was not just that Congress had spoken sufficiently clearly to overcome Eleventh
Amendment immunity in enacting § 1988, but rather that the Eleventh Amendment did not apply
to an award of attorney’s fees ancillary to a grant of prospective relief.” The holding of Missouri
was that the Eleventh Amendment also does not apply to the calculation of the amount of a fee
(...continued)
Act to provide, effective October 30, 1990: “A State shall not be immune under the eleventh amendment to the
Constitution of the United States from suit in Federal court for a violation of this Act.” 20 U.S.C. § 1403. A committee
report states that this was intended to overturn Dellmuth v. Muth. H.Rept. 101-544, 101st Cong., 2nd sess., 12; reprinted
in 1990 U.S.C.C.A.N. 1723, 1734.
72
In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the Court held that the Age Discrimination in
Employment Act, though a valid exercise of Congress’s commerce power, could not be applied to the states unless
Congress also had the power to enact it under § 5 of the Fourteenth Amendment, which Congress does not.
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award and therefore does not prohibit enhancement of a fee award against a state to compensate
for delay in payment.
The $2,500 court of appeals award in Hutto was made solely pursuant to § 1988(b), and in
affirming this award the Court held that Congress intended § 1988(b) to permit awards of
attorneys’ fees against the states. The Court based this conclusion on the legislative history of §
1988(b) and on the fact that § 1988(b) provides for fee awards “as part of the costs,” and “[c]osts
have traditionally been awarded without regard for the States’ Eleventh Amendment immunity.”
Id. at 695. The Court also held that fees could be awarded against the state even though the state
had not been named as a defendant. “Congress recognized that suits brought against individual
officers for injunctive relief are for all practical purposes suits against the state itself.” Id. at 700.
Thus, in a suit for injunctive relief, the state, not the state official, may be held liable for fees
under § 1988(b). However, in a suit for injunctive relief, a state official may be assessed fees
under the common law bad faith standard, which was not affected by § 1988(b). Id. at 692 n.19,
693, 700.
In addition, in Kentucky v. Graham, 473 U.S. 159 (1985), the Supreme Court indicated that state
officials who are not, like judges (discussed below), immune from damages liability, may be sued
in their personal capacities for damages under § 1983, and in such cases may be liable for fees
even in the absence of bad faith. In such cases, however, the state will not be liable for fees.
The holding in Hutto v. Finney that § 1988(b) permits fee awards against the states took on added
importance in 1980, when the Supreme Court expanded the reach of § 1988(b) in Maine v.
Thiboutot and Maher v. Gagne, both of which were discussed in detail in section VI of this report.
Briefly, Maine v. Thiboutot permitted state courts to award fees in any action against a state for
violation of any federal law (although subsequent cases discussed above narrowed this
holding), and Maher v. Gagne permitted federal courts to do the same, provided there is a
substantial claim raised under the Constitution or a statute enacted under § 5 of the Fourteenth
Amendment. The Court left open the question whether the Eleventh Amendment allows federal
courts to award fees in wholly statutory non-civil rights cases.73
Awards of Attorneys’ Fees Against State Judges
In Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719 (1980), and
in Pulliam v. Allen, 466 U.S. 522 (1984), the issue arose whether state judges, sued in their
official capacities under 42 U.S.C. § 1983, enjoy any immunity from awards of attorneys’ fees
that other state officials lack. The answer, the Court found, depended upon whether the judges
were sued for damages or injunctive relief, and whether the conduct concerning which they were
sued had been performed in their legislative, enforcement, or adjudicative capacity. In 1996, P.L.
104-317, § 309, modified the law announced in Pulliam.
In Consumers Union, the Virginia court’s restrictions on lawyer advertising were found to violate
the First Amendment’s guarantee of freedom of speech. The Supreme Court held that in
propounding the advertising prohibitions the Virginia court had acted in a legislative capacity, and
73
Although the Supreme Court has not explicitly decided the question, the fact that it held in Seminole Tribe, supra,
that Congress may not override the Eleventh Amendment when legislating pursuant to the Commerce Clause suggests
that § 1988(b) does not apply to § 1983 claims that do not arise under the Fourteenth Amendment.
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that in such capacity it enjoys common law immunity from damages liability and from
declaratory and injunctive relief, and thus from awards of attorneys’ fees. However, the Court
noted, although Consumers Union had alleged only that the Virginia court had promulgated the
advertising prohibitions, the Virginia court, in addition to its legislative function, has adjudicative
and enforcement authority in attorney disciplinary cases.
In their adjudicative and enforcement capacities, judges enjoy absolute immunity from damages
liability. However, in both these capacities, they are subject to suits for injunctive relief, and,
under § 1988(b), to awards of attorneys’ fees. (Consumers Union held this with respect to courts’
enforcement authority, and Pulliam held it with respect to their adjudicatory authority.) In
Pulliam, the Court wrote:
Petitioner insists that judicial immunity bars a fee award because attorney’s fees are the
functional equivalent of monetary damages and monetary damages indisputably are
prohibited by judicial immunity. She reasons that the chilling effect of a damages award is
not less chilling when the award is denominated attorney’s fees. There is, perhaps, some
logic to petitioner’s reasoning. The weakness in it is that it is for Congress, not this Court, to
determine whether and to what extent to abrogate the judiciary’s common-law immunity. See
Pierson v. Ray, 386 U.S., at 554. Congress has made clear in § 1988 its intent that attorney’s
fees be available in any action to enforce a provision of § 1983.
466 U.S. at 543.
It should be emphasized that, under Pulliam, the state and not the judge ordinarily will be liable
for attorneys’ fees. As noted above, in Hutto, the Supreme Court held that, in injunctive suits, the
state must pay fees awarded under § 1988(b); state officials may be held personally liable for fees
only under the common law bad faith standard.
In 1996, P.L. 104-317, § 309(b), amended 42 U.S.C. § 1988(b) to make judicial officers immune
from awards of costs, including attorneys’ fees, for any “act or omission taken in such officer’s
judicial capacity ... unless such action was clearly in excess of such officer’s jurisdiction.”
Section 309(a) prescribed the same rule for federal judicial officers who are subject to Bivens
actions.74 Section 309(c) amended 42 U.S.C. § 1983 to prohibit injunctive relief against a state
judicial officer “unless a declaratory decree was violated or declaratory relief was unavailable.”
X. Awards of Costs in Federal Courts
Federal Rule of Civil Procedure 54(d), 28 U.S.C. App. Rule 54(d), defines the power of federal
courts to allow costs to prevailing parties. It states:
Except when express provision therefor is made in a statute of the United States or in these
rules, costs shall be allowed as of course to the prevailing party unless the court otherwise
directs; but costs against the United States, its officers, and agencies shall be imposed only to
the extent permitted by law....
74
See, S.Rept. 104-366, 104th Cong., 2nd sess., 37 (1996).
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“Costs” that may be awarded are those items enumerated in 28 U.S.C. § 1920, which do not
include attorneys’ fees. Section 1920 provides that federal courts may “tax as costs” (order the
losing party to pay) the following:
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.