Ake v. Oklahoma Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae for the American Psychiatric Association
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January 1, 1983

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Brief Collection, LDF Court Filings. Farrar v. Hobby Motion for Leave to File a Brief as Amicus Curiae and Brief Amicus Curiae, 1992. 7104f977-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e91ef794-48ff-4a7b-8bf6-84e2fe9415b8/farrar-v-hobby-motion-for-leave-to-file-a-brief-as-amicus-curiae-and-brief-amicus-curiae. Accessed July 07, 2025.
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In T he H>upreme Court of tf)r tHrutrfo ^tate^ Octo ber T er m , 1991 Dale Farrar, et a l, v. Petitioners, William Hobby, Respondent. On Writ of Certiorari to the United States Court of Appeals For the Fifth Circuit MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE AND BRIEF OF THE AMERICAN BAR ASSOCIATION AS AMICUS CURIAE IN SUPPORT OF PETITIONERS Talbot S. D’Alemberte* President American Bar Association E ric B. Schnurer Carter G. Phillips Joseph R. Guerra 750 North Lake Shore Drive Chicago, IL 60611 (312) 988-5215 Counsel fo r Amicus Curiae *Counsel of Record April 9, 1992 PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 iX • \ i 1 i j i- : I j In Th e S u p r e m e (C o u rt o f tlje tH m te ti S t a t e s October Te r m , 1991 No. 91-990 Dale Farrar, et al., v. William Hobby, Petitioners, Respondent. On Writ of Certiorari to the United States Court of Appeals For the Fifth Circuit o f THE AMERICAN BAR ASSOCIATION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE The American Bar Association (“ABA”) hereby re quests, pursuant to Rule 37 of the Rules of this Court leave to file the accompanying brief as amicus curiae m support of petitioners. The ABA obtained the con sent of the petitioners to the filing of this brief.1 Counsel for respondent, however, refused to- grant consent. The ABA is the leading national membership or ganization of the legal profession, numbering more 1 ‘̂ ,Jef er consent froni petitioners has been lodged with the Clerk of the Court. than 365,000 members throughout the United States. The ABA’s membership includes many lawyers who regularly represent plaintiffs in civil rights, antitrust, environmental, and other types of federal litigation in which, by federal statute, courts are empowered to award “reasonable attorney’s fees’’ to prevailing parties. s As the national organization of the bar, the ABA has long promulgated standards of professional re sponsibility, including standards governing the fees that attorneys may charge for their services. The ABA also has recognized the legal profession’s duty to help enforce our nation’s civil rights laws. The ABA has contributed to the development of federal fee-shifting statutes, and, in light of its leadership role, has par ticipated as amicus curiae in previous cases before this Court concerning the interpretation of these stat utes.2 The practical interest of the ABA’s members in the proper application of fee-shifting statutes, the com mitment of the ABA and its members to the devel opment of proper ethical standards for attorney service and compensation, and the commitment of the ABA and its members to the protection of constitu tional norms give the ABA a strong and unique in terest in this case as amicus curiae. The ABA believes that its perspective on the issues presented by petitioners will assist the "Court in evaluating the de cision of the court of appeals. 2 See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711 (1987). The ABA also is filing a brief as amicus curiae in City of Burlington v. Dague, No. 91-810. For the foregoing reasons, the ABA’s Motion for * tw -'t-° a Brief as Amicus Curiae in Supportoi Petitioners should be granted. Respectfully submitted, Talbo t S. D ’A l e m b e r t e * President American Bar Association E ric B . Sc h nu rer Ca r ter G. P h illips Jo se ph R. Gu er r a /50 North Lake Shore Drive Chicago, IL 60611 (312) 988-5215 Counsel for Amicus Curiae *Counsel of Record i QUESTION PRESENTED Whether 42 U.S.C. § 1988 authorizes the award of reasonable attorney’s fees to civil rights plaintiffs who recover nominal damages. i-r 1:'’? \ ii TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................. iii INTEREST OF AMICUS CURIAE ................................. 1 SUMMARY OF ARGUMENT ................................................ 1 ARGUMENT ................................................................................. 4 I. The Language, Purpose, And History Of 42 U.S.C. § 1988 Demonstrate Clearly That Congress Intended That Prevailing Plaintiffs, Even Those Who Recover Only Nominal Damages, Are Entitled To Recover Reason able Fee Awards ................................................... 4 II. This Court’s Cases Make Clear That A Plaintiff Who Recovers Nominal Damages Is Entitled To An Award Of Attorney’s Fees Under § 1988 ......................................................... 8 A. The “Prevailing Party” Requirement Is Only A “Threshold” Inquiry ..................... 8 B. The Court Below Erred In Making The Plaintiffs’ Status As “Prevailing Parties” Contingent Upon The Size Of The Dam age Award They O btained.......... ................ 10 C. The Limited Nature Of A Prevailing Par ty’s Success Is Properly Reflected In The Amount Of Attorney’s Fees Awarded .... 17 CONCLUSION ....................................................................... 20 : S’ *p£pis§ 111 TABLE OF AUTHORITIES CASES Page 11Allen v. Higgins, 902 F.2d 682 (8th Cir. 1990) yem v ^ s^ h ) 0: H . . ŵ ss - Blanchard v. Bergeron, 489 U.S. 87 (1989).............. IS 19 Carey v p iph^ 4S5 u & ^ ( m g ) ....... ^ ?991 f Z N V'Cam' 941 F-2d 1311 (5r-h Cir. ’ Ganeg v. E duards, 759 F .2d 337 (4th"cir." 1985)" ^ ’n T u h S f , ( f T : . . T : : . . 80L R2d 1636 HenSnooo\ Eckerhart> 461 U.S. 424 (iy83)............... i i He^-itt v. Helms, 482 U.S. 7 5 5 (ioSU l * * * ' W 9 Maher v. Gagne, 448 U.S. 10,11,14 Ar , 122 (1980)................... 6 8 ^ ^ 1 9 7 8 ) Hdgemoe’ 581 F -2d 275 (1st Cir. Nephew 1987) CU. y.°fA U r0 ra ’ 830 F ‘2d 1547 (10th Cir. Rhodes v. Stewart, 488 U.S. 1 (1988) C ity of Riverside v. Rivera, 477 U.S. 561 (1986) RU" m i ) \ Krzem inski’ 928 F .2d 558 (2d Cir. Sc°M d v.^aty of HillsboroughP 862 F.2d 759 (9th Skoda v. Fontani, 646 F .2 d 'll9 3 ‘(7th'cir‘." l9 8 l7 D l tt f i ‘t s S4 f n v- *■**>■ Sck. 11 2,5,6 3,9 6,18 11 11 11 ; ........... ........ 2-3>6,8,9,10,11,12,13,14,15,17,18,19 V‘ ^ tudernts Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) ^ j l IV TABLE OF AUTHORITIES—Continued Page . STATUTES AND RULES 42 U.S.C. § 1988 ............................................................... 1,4 LEGISLATIVE HISTORY Cong. Rec., 94th Cong., 33,314 (1976) ...................... 5 H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976) . 2,5,6 S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) . 6,7,18,19 OTHER AUTHORITIES M. Derfner & A. Wolf, Court Ordered Attorney Fees (rev. ed. 1991 ).................................................. 11 In The Supreme Court of tfje ®m'fe& States October Te r m , 1991 No. 91-990 Dale Farrar, et a l , v. William Hobby, Petitioners, Respondent. On Writ of Certiorari to the United States Court of Appeals For the Fifth Circuit BRIEF OF THE AMERICAN BAR ASSOCTATTOW AS AMICUS CURIAE IN SUPPORT OF PETITIONERS INTEREST OF AMICUS CURIAE n mt er?st .of the American Bar Association as amicus cunae is fully set forth in the Motion for Of Petitioners. * f “ Cwiae in SuPPOT‘ SUMMARY OF ARGUMENT n ^ 0? f T S+S e”af.ted 42 U-S-C- § 1988 to enable p amtiffs to vindicate the fundamental national poli cies underlying the civil rights laws. “[U]nless rea- 2 sonable attorney’s fees could be awarded for bringing these actions, Congress found that many legitimate claims would not be redressed.” Pennsylvania v. Del aware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 560 (1986). This is because ‘‘a vast majority of the victims of civil rights violations cannot afford legal counsel” and because many civil rights claims have a “severely limitfed]” potential for damages. H.R. Rep. No. 1558, 94th Coqg., 2d Sess. 1, 9 (1976). Indeed, consistent with this congressional policy, this Court has recognized “the importance to organized society” of prosecuting civil rights actions even where the victim of a constitutional violation has suffered no “actual injury” apart from the denial of a con stitutional right and where, as a consequence, the only damages recoverable are nominal. See Carey v. Pi- phus, 435 U.S. 247, 266 (1978). Thus, an explicit ra tionale of Section 1988 was the need to provide an incentive for the prosecution of civil rights actions that were likely to result in little or no damage re coveries for the plaintiff. Given the recognition by Congress and by this Court that lawsuits brought to vindicate constitutional rights serve a vital public purpose even when they do not yield significant damage recoveries, there is clearly no basis upon which to hold that a plaintiff who suc ceeds in such an action is not a “prevailing party” because his damages are only nominal. Time and again, this Court has made clear that Section 1988’s “prevailing party” requirement entails only a minimal “threshold” inquiry, and that a party may be said to have “prevailed]” where he “has succeeded on ‘any significant issue’” presented in the litigation, Texas State Teachers A ss’n v. Garland Indep. Sch. Dist., 3 489 U.S. 782, 791 (1989), and where, as a result, he “receive[s] at least some of the relief on the merits of his claim.” Hewitt v. Helms, 482 U.S. 755, 760 (1987). Once this test is met, ‘‘the degree of the plaintiff’s overall success goes [only] to the reasona bleness of the award . . ., not to the availability of a fee award vel non.” Texas State Teachers, 489 U.S. at 793. The court below contravened this teaching by mak ing the availability of a fee award in a civil rights action turn, not on whether the plaintiff in fact has succeeded in obtaining relief on the merits of his claim, but rather on the degree of the plaintiff’s suc cess as measured by the dollar value of the damages awarded. In so doing, the court of appeals extended dramatically this Court’s rulings in Rhodes v. Stewart, 488 U.S. 1 (1988), and Helms, 482 U.S. 755, which had announced only the ‘‘common sense” proposition that a plaintiff cannot be said to have prevailed where he has obtained no relief whatsoever from the defendant. The fact that petitioners recovered only one dollar out of the $17 million they requested should not pre vent them from crossing the statutory threshold to a fee award of some kind. The magnitude of the re covery should be a factor solely in determining the amount of fees that ultimately are awarded. Although the degree of a plaintiff’s success is not relevant to whether he is a ‘‘prevailing party,” it is clearly rel evant to determining what fee is “reasonable” under all the circumstances. See Texas State Teachers, 489 U.S. at 790; Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). For this reason, it does not follow inexorably that simply because a plaintiff “prevails,” even though 4 the success is limited, he or she will receive a large award of attorney’s fees. ARGUMENT ' I. THE LANGUAGE, PURPOSE, AND HISTORY OF 42 U.S.C. § 1988 DEMONSTRATE CLEARLY THAT CON GRESS INTENDED THAT PREVAILING PLAINTIFFS, W 'r'-. • .A-.... EVEN THOSE WHO RECOVER ONLY NOMINAL DAM- A C 'A .A •'••/. v ; A A A A ' AGES, ARE ENTITLED TO RECOVER REASONABLE FEE AWARDS. -A'a -A AAvA; A A A a A a a A A The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, provides in relevant part: :.A; A A AAA:A-' AvAAA In any action or proceeding to enforce a provision ; > A A A 'A A-.A: - AA ' • sections [1981, 1982, 1983, 1985, and 1986 of . . this title], title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. Congress enacted Section 1988 in response to this Court’s decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), which had "reaffirmed the ‘American Rule’ that each party in a lawsuit ordinarily shall bear its own attorney’s fees • ; vAA'.A unless there is express statutory authorization to the VC • ’ 'A " ’ '•■••• V-A: contrary. ’’ Hensley, 461 U.S. at 429. Congress’ swift response to Alyeska was grounded in the determination that civil rights plaintiffs too > .;A' •: ..;A;A'-: often were unable to secure legal representation in • ; ;A . A • A A-:> ■:; the private legal services market and that, as a result, ■ • --- - V . A >̂ %::A = violations of ° important federal rights went unre dressed. "Because a vast majority of the victims of civil rights violations cannot afford legal counsel,” 5 Congress observed, “they are unable to present their cases to the courts.” H.R. Rep. No. 1558, 94th Cong., 2d Sess. 1 (1976). Moreover, “while damages are the oretically available under the statutes covered by [Sec tion 1988], . . . immunity doctrines and special defenses, available only to public officials, [may] pre clude or severely limit the damage remedy.” Id. at 9. Consequently, as a general matter, “civil rights cases—unlike tort or antitrust cases—do not provide the prevailing plaintiff with a large recovery from which he can pay his lawyer.” 122 Cong. Rec. 33,314 (1976) (remarks of Sen. Kennedy). Fearful that these factors were causing many mer itorious civil rights claims to go unprosecuted, Con gress enacted Section 1988 “to ensure 'effective access to the judicial process’ for persons with civil rights grievances.” Hensley, 461 U.S. at 429 (quoting H.R. Rep. No. 1558, supra, at l).3 “[F]ee awards,” the Senate report noted, have proved an essential remedy if private citi zens are to have a meaningful opportunity to vin dicate the important Congressional policies which these laws contain. . . . If private citizens are to be able to assert their civil rights, and if those who violate the Nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court. See also Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 560 (1986) (“unless reasonable attorneys fees could be awarded for bringing these actions, Congress found that many legitimate claims would not be re dressed”). 6 S. Rep. No. 1011, 94th Cong., 2d Sess. 2 (“Senate Report”), reprinted in 1976 U.S. Code Cong. & Ad min. News 5910 (indication of paragraph break omit ted).4 Thus, Congress not only recognized that successful civil rights actions often would not end in sizable damage awards, but also^emphasized that awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil and constitutional rights are to be adequately protected.” H.R. Rep. No. 1558, supra, at 9 (emphasis added).5 Accordingly, “the amount of fees awarded [should] not be reduced because the rights in volved may be nonpecuniary in nature.” Senate Re port, supra, at 6, reprinted in 1976 U.S. Code Cong. & Admin. News at 5913. Two years after Congress enacted Section 1988, this Court confirmed Congress’ understanding that the rights at stake in litigation covered by the fee- shifting statute often would “be nonpecuniary in na ture.” In Carey v. Piphus, 435 U.S. 247 (1978), the * This Court regularly has relied upon these legislative reports in discerning Congress’ intent with respect to the fee-shifting provision contained in Section 1988, as well as those found in other federal statutes. See, e.g., Texas State Teachers A ssn v. Garland Indep. Sch. D iet, 489 U.S. 782, 790 (1989); Pennsyl- vania v. Delaware Valley Citizens’ Council for Clean A ir , 478 U.S. 546, 560; City of Riverside v. Rivera, 477 U.S. 561, 575- 78 (1986) (plurality opinion); Hensley v. Eckerhart, 461 U.S. 424, 429-30 (1983); Maher v. Gagne, 448 U.S. 122, 129 (1980). s See also Rivera, 477 U.S. at 577 (“Congress enacted § 1988 specifically to enable plaintiffs to enforce the civil rights laws even where the amount of damages at stake would not otherwise make it feasible for them to do so”). ■V . 7 Court held that, absent proof of some ‘‘actual injury” resuitmg from the deprivation of a constitutional right, a plaintiff who prevails in asserting a consti tutional violation is entitled only to nominal damages. By making the deprivation of such rights actionable tor nominal damages without proof of actual injury ” the Court explained, “the law recognizes the impor tance to organized society that those rights be scru pulously observed . . Id. at 266. Thus, this Court in Carey, like Congress before it recognized that plaintiffs perform a service “impor- tan t] to organized society” when they vindicate their civil rights m court, even though their lawsuits may result in nothing more than an award of nominal damages As the legislative history of Section 1988 makes clear, it was the prosecution of precisely this ° ( t WS,mt ? at ConSTess sought to encourage rough the fee-shifting mechanism—lawsuits that al though not economically attractive from a lawyer’s point of view, nonetheless “vindicate the important Congressional policies which these [civil rights] laws 197^11 9 Ser awe ^ eport> isuPra> at 2, reprinted in 76 U.S. Code Cong. & Admin. News at 5910 Plainly, a rule such as that applied by the court of appeals m this case-holding that a civil rights plaintiff who brings a damage action does not “prevail” unless the damages awarded are substantial-directly con travenes Congress’ purpose in enacting Section 1988. 8 II. THIS COURT’S CASES MAKE CLEAR THAT A PLAINTIFF WHO RECOVERS NOMINAL DAMAGES IS ENTITLED TO AN AWARD OF ATTORNEY’S FEES UNDER § 1988. A. The “ Prevailing Party’’ Requirement Is Only A “Threshold’’ Inquiry. An essential predicate, of course, to any award of attorney’s fees under Section 1988 is that the plaintiff must be a “prevailing party.” But, as this Court has made clear, the burden a plaintiff must carry to cross this “statutory threshold” was never intended to be a heavy one. A party need not prevail on all or even most of the issues presented in a lawsuit. Hensley, 461 U.S. at 435 & n .ll. Nor must a party prevail on the “central issue” at stake in the litigation or achieve the “primary relief sought.” Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790- 91 (1989). Rather, “[i]f the plaintiff has succeeded on ‘any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit,’ the plaintiff has crossed the threshold to a fee award of some kind.” Id. at 791-92 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).6 At bottom, the inquiry is a pragmatic one. Thus, this Court has held that a plaintiff may be a “pre vailing party” even where there has been no “judicial determination that the plaintiff’s rights have been vi olated,” so long as a settlement favorable to the plaintiff has been struck. Maher v. Gagne, 448 U.S. 6'As the Court concluded in Hensley, 461 U.S. at 433: This is a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is “reasonable.” 9 i i 'j 122, 129 (1980). On the other hand, a judicial deter mination that the plaintiffs rights have been violated, standing alone and without any possibility that the plaintiff will ever obtain any relief from the defendant, is insufficient to make the plaintiff a “prevailing party.” See Rhodes v. Stewart, 488 U.S. 1 (1988); Hewitt v. Helms, 482 U.S. 755 (1987). Accordingly, a plaintiff does not “prevail” in litigation if he obtains only a judicial finding of unconstitutional conduct for which the defendants are immune from all liability, r f see Helms, supra, or if he obtains only a declaratory .; 'A. V7 judgment that is unenforceable because the case was J tu moot when judgment was entered, see Stewart, su pra. The rationale for this result is that “[a]t the end of the rainbow lies not a judgment, but some action . . . by the defendant that the judgment produces— the payment of damages, or some specific perform ance, or the termination of some conduct.” Helms, t 482 U.S. at 761. In sum, [t]he touchstone of the prevailing party inquiry [is] . . . the material alteration of the legal re- lationship of the parties in a manner which Con- gress sought to promote in the fee statute. Where A A ;AAA AjA V A; A: such a change has occurred, the degree of the plaintiff’s overall success goes to the reasonable ness of the award under Hensley, not to the avail ability of a fee award vel non. A- /AAA/AA Texas State Teachers, 489 U.S. at 792-93. A- As this Court’s cases make plain, what counts in determining whether a plaintiff has “prevailed” is whether the plaintiff has obtained a judgment that is j both favorable, in the sense that it finds that the defendant has violated the plaintiff’s civil rights, and ii i 10 enforceable, in the sense that the defendant is not free to ignore it. As should also be plain, however, especially given the value Congress assigned in en acting Section 1988 to the vindication of “nonpecu- niary” civil rights, a judgment need not result in any particular “degree” of relief once a violation has been found and remedied by some judicial action. B. The Court Below Erred In Making The Plaintiffs’ Sta tus As “Prevailing Parties” Contingent Upon The Size Of The Damage Award They Obtained. The petitioners in this case obtained an enforceable judgment holding the respondent liable in damages for the violation of petitioners’ civil rights. Respondent is not free to ignore the jury’s verdict or to treat it as merely advisory. Moreover, upon execution of the judgment, respondent will have paid over to the petitioners the court-ordered compensation for the constitutional violation he has been adjudged to have committed. The petitioners’ lawsuit therefore not only succeeded in vindicating their constitutional rights, but also effected a “change[] [in] the legal relation ship” between the parties, see Texas State Teachers, 489 U.S. at 792, and produced “some action . . . by the defendant”—namely, “the payment of damages.” Helms, 482 U.S. at 761. Nevertheless, the court of appeals in this case held that the petitioners did not qualify as “prevailing par ties” under Section 1988 because the amount of the damages they received, compared to the amount of damages they sought, rendered their victory “merely . . . technical.” Estate of Farrar v. Cain, 941 F.2d „ 1311, 1315-16 (5th Cir. 1991). That holding is squarely at odds with this Court’s instruction that the pre vailing-party requirement is satisfied where the 1 1 pkmtiff “has succeeded on ‘any significant issue’” in the litigation, Texas State Teachers, 489 U.S. at 791 and as a result has “receive[d] at least some relief on the merits of his claim,” Helms, 482 U.S. at 760 7 I he rule also is inconsistent with this Court’s holding that the prevailing-party requirement should not im pose a heavy burden on a plaintiff.8 Indeed, the Fifth Circuit’s rule in the instant case suffers from precisely the same defects that led this Court to reject the “central issue” test that the Fifth Circmt Previously propounded to govern prevailing- ^ Fifth Circuit’s decision is also at that the ron b lShed 7 ^ ln 0ther circuits’ which have recognized as this rnnSr’6ST na - purposes ^derlying Section 1988, as well as this Court s decisions interpreting the statute, compel the awardin'? ® P “Prevails” when he obtains a damage award-of any size-aga.nst the defendant. See, e.g Ruggimo ffinsT902 F M ’68? ^ ^ 1991); AUen v Wgins, 902 P .2d 682, 684 (8th Cir. 1990)- Scofield v Cih, nf m ill borough, 862 F.2d 759, 766 (9th Cir. 1 9 ^ 7 ^ V c i tu of Aurora, 830 F.2d 1547, 1553 n.2 (10th Cir. 1987?(e» banc) cert denwd 485 U.S. 976 (1988); Gamer v. Wal-Mart Stores’ Inc F 2 7 3 Cir‘ 1987 ̂ v. E d l Z r d s t i f; i i 4l (4t „ ? r' 1985); Skoda v. Foniani, 646 F.2d , 193- 4 19ie Zth Cl!; 1981) ^ w™ 11”); see also 1 M. Derfner A- Wolf, Court Ordered Attorney Fees t 8 03r21fal at nr> 8 20 through 8-21 (rev. ed. 199im B ]ecause a plaintiff^prevaiL' hen he has obtained ‘some relief,’ a plaintiff prevails when he obtains less-even far less-than he sought, such as when he recovers only nominal damages”) (footnote collecting cases omit- *In-thlS-ref ard’ the prevailing-party requirement is similar to e injury ,n-fact requirement in standing analysis: it is the fact concrete injury, not any particular magnitude of injury that s required to get a plaintiff across the threshold. S7e e g c X f e s Sl f ^ W i * 12 party status. In Texas State Teachers, this Court held that the Fifth Circuit’s “central issue” test—under which a party would be considered “prevailing” only if it “prevailed on the central issue [in the case] by acquiring the primary relief sought”—was inconsis tent with Section 1988 because it made the plaintiffs eligibility for a fee award turn on “the degree of the plaintiffs success” rather than on the simple fact of the plaintiffs success. Texas State Teachers, 489 U.S. at 790 (emphasis in original). Moreover, this Court found the “central issue” test deficient because it rendered the award of fees con tingent on the timing of the fee request. Thus, a plaintiff could receive an award of fees for the suc cessful portions of its case prior to final judgment, but would not be entitled to fees for the same work if no application were made until after an ultimately adverse judgment on the litigation’s “central issue.” See id. at 790-91. Finally, the Court found that the “central issue” test had little “to recommend it from the viewpoint of judicial administration” because “it asks a question which is almost impossible [for courts reliably] to an swer.” Id. at 791. In requiring that courts identify the “central issue” in any litigation or “the primary relief” sought in any given case, the Fifth Circuit’s test forced courts to undertake an “ ‘excruciat ingly]’ ” difficult inquiry and made the ultimate avail ability of a fee award “depend largely on the mental state of the parties” in bringing the action, a matter “wholly irrelevant to the purposes behind the fee shifting provisions.” Id. The Fifth Circuit’s “nominal damages” exception suffers from each of these same defects. Here, the 13 court of appeals held that a plaintiff who has won a judgment of liability against a defendant and an en forceable award of money damages nonetheless is not a “prevailing party’' if the court perceives that the plaintiffs “singular objective” in bringing the action was financial and that the amount of recovery is suf ficiently small to be “disappointing.” This demands that courts perform precisely the type of inquiry the Court condemned in Texas State Teachers. First, the Fifth Circuit’s rule makes the availability of any fee award contingent upon “the degree of the plaintiffs success.” Here, plaintiffs clearly have sat isfied the requirement articulated in Helms and Stem- art—i.e., they have obtained an enforceable judgment that has produced action by the defendant’s paying them damages. Yet, the Fifth Circuit now demands something more, viz., that the degree or magnitude of the money aw'ard be sufficiently large to qualify, in the court’s subjective judgment, as a victory. This Court, however, has made clear that this additional requirement is inappropriate: “[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.” Texas State Teachers, 489 U.S. at 790 (second emphasis added). Second, the Fifth Circuit’s rule would render the availability of a fee award potentially dependent “on the timing of a request for feos.” Id. at 791. In bi furcated cases, in which juries assess liability and damages in separate proceedings, plaintiffs could re cover awards of attorney’s fees 'pendente lite before damage juries decide that only nominal damages are appropriate. Yet, these same plaintiffs could recover 14 no fee awards at all if their applications were delayed until final judgment. As the Court made clear in Texas State Teachers, this result could not have been what Congress intended in enacting Section 1988. See id. (“Congress cannot have meant ‘prevailing party’ sta tus to depend entirely on the timing of a request for fees . . .”); cf. Helms, 482 U.S. at 762 (“There is no warrant for having status as a ‘prevailing party’ de pend upon the essentially arbitrary order in which the district court . . . choosefs] to address issues”). Third, the Fifth Circuit’s test “asks a question which is almost impossible to answer,” Texas State Teachers, 489 U.S. at 791, requiring courts to assess whether a plaintiff’s “singular object” is a lucrative award of money damages and whether the particular amount of damages awarded is sufficiently lucrative to qualify as more than a “technical” victory. As an initial matter, the latter inquiry involves impossible line-drawing exercises. If a SI recovery can be dis regarded for purposes of determining whether the party has obtained “meaningful” relief, what of a $50 recovery, or a $500 recovery? Moreover, the initial inquiry required by the Fifth Circuit’s rule—whether the essential purpose of the plaintiff’s lawsuit was to obtain substantial damages— is fundamentally hopeless as a rule of decision. Sup pose, for example, that the petitioners here never had claimed any “actual injury” apart from the denial of their constitutional rights and, accordingly, had con fined the relief they sought to nominal damages. Carey v. Piphus recognizes—as did Congress itself in enacting Section 1988—that a plaintiff who has suf fered no “actual injury” from a constitutional viola tion may nonetheless elect to sue for nominal damages 15 and, in doing so,̂ will vindicate principles “importanftl to organized society.” See 435 U.S. at 266.9 Had the petitioners so confined their allegations in this case, they would have obtained precisely what they sought and their victory could not be dismissed as “merely . . . technical.” The result should be no different sim ply because they added to their complaint an alle gation of “actual injury” and a claim for corresponding compensation that the jury ultimately i. cJcLlviu* The court of appeals in this case has drawn pre cisely this distinction, making the plaintiffs entitle ment to fees turn, in effect, upon its primary motivation in bringing suit. As with the “central is sue test, [t]his question, the answer to which ap pears to depend largely on the mental state of the K?rtieS’ Is rwholly irreIevant to the purposes behind the fee shifting provisions, and promises to mire dis trict courts . . . in an inquiry which . . . [can rightly 4S9 U sr a6t 79Sl ' “ CmCiating' ”’ r„.i„n,1fdr “ :"ctl ‘ e " n7 thls Court has recognized that “the potential liability of . . . defendants for attorney’s fees” under Section 1988 itself serves as a valuable deterrent to constitu tional violations. See Carey, 435 U.S. at 257 n .ll. 10 Any inquiry into motivation is inherently difficult, but the problem seems unusually intractable when the question is the motivation for litigation. There is at least a serious question about whose motivation the Court is reviewing-the attorney’s or the plaintiffs. It is far from clear that they will have* a common motivation. In one case, a plaintiff may wish to sue to theton S nghtS’ WJ lle the laWyer may brin£ the acdon in the hope of winning a damage award from which he may obtain S fee- ,anotber case- the htigant may care nothing about the constitutional issue, but the attorney may be far more con- 16 In sum, in holding that judges may deny “prevailing party” status to a plaintiff who has vindicated his constitutional rights and obtained in court an enforce able judgment for monetary relief, based solely upon the size of the damage award, the court of appeals has extended the rationales of Helms and Stewart well beyond their “common sense” moorings. If upheld, this ruling will thrust the courts into a sensitive area of decisionmaking in which there are few guideposts to channel judicial discretion. A hard-and-fast rule de nying attorney’s fees to civil rights plaintiffs who ob tain a judgment only for nominal damages would fly in the face of Congress’ intent in enacting Section 1988—i.e., to enable the prosecution of lawsuits to vindicate rights that, although vitally important, “may be nonpecuniary in nature.” A more flexible rule— for example, one that permits fee awards in nominal- damage actions involving some “genuine” struggle over constitutional principles but denies them in cases where a plaintiffs primary motivation in bringing suit is thought to be pecuniary* 11—would call upon the courts to make impossible judgment calls. There are no reliable standards by which to assess the “essen- cerned with that aspect of the case. It would be almost impos sible in a single set of pleadings for a court to discern what the plaintiffs real motivation is in pursuing a particular case because there is no way to know whose motive—litigant’s or lawyer’s—is revealed in the submissions involved in the litigation. 11 This appears to be the rule applied by the court of appeals: [W]e hold that when the sole object of a suit is to recover money damages, the recovery of one dollar is no victory under § 1988. This was no struggle over constitutional principles. It was a damage suit and surely so since plaintiffs sought noth ing more. Estate of Farrar v. Cain, 941 F.2d 1311, 1315 (5th Cir. 1991). 17 tial” purpose of a lawsuit or the minimum money judgment necessary to render a legal victory “real” rather than “merely . . . technical.” Accordingly, the ruling of the court of appeals in this case departs without justification from Congress’ intention in Sec tion 1988 to make legal counsel available even to those civil rights plaintiffs whose claims, although meritorious, “may be nonpecuniary in nature.” C. The Limited Nature Of A Prevailing Party’s Success Is Properly Reflected In The Amount Of Attorney’s Fees Awarded. The fact that petitioners recovered only one dollar out of the $17 million they requested should not pre vent them from crossing the statutory threshold to a fee award of some kind, but rather should be reflected in the amount of fees they ultimately recover. As this Court has explained, in complex civil rights litigation, [although the plaintiff often may succeed in iden tifying some unlawful practices or conditions, the range of possible success is vast. That the plaintiff is a “prevailing party” therefore may say little about whether the expenditure of counsel’s time was reasonable in relation to the success achieved. Hensley, 461 U.S. at 436. Accordingly, “the degree of the plaintiff’s success in relation to the . . . 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.” Texas State Teachers, 489 U.S. at 790 (second emphasis added). This Court has emphasized that “the district court has discretion in determining the amount of a fee award” and, with its “superior understanding of the litigation,” is best able to assess whether the “relief 18 obtained justified th[e] expenditure of attorney time” for which fees are sought. Hensley, 461 U.S. at 436- 37 & n .ll. In situations where the relief obtained is limited, district courts may, in the exercise of their equitable discretion, “identify specific hours that should be eliminated [from the lodestar] or . . . simply reduc[e] the award to account for the limited suc cess.” Texas State Teachers', 489 U.S. at 789-90; see also Blanchard v. Bergeron, 489 U.S. 87, 96 (1989). This is not to say, of course, that the amount of damages that plaintiffs recover under civil rights or other federal fee-shifting statutes is the determina tive, or even necessarily a weighty, factor for pur poses of establishing a reasonable fee award. The importance of some federal rights cannot be measured in monetary terms, see, e.g., Carey, 435 U.S. at 266, yet Congress made plain that fee awards should not be reduced simply “because the rights involved may be nonpecuniary in nature.” Senate Report, supra, at 6, reprinted in 1976 U.S. Code Cong. & Admin. News at 5913. Accordingly, this Court correctly has rejected a strict rule of proportionality in assessing the amount of a fee award, see City of Riverside v. Rivera, A ll U.S. 561 (1986), and Congress has not seen fit to change the statute to provide otherwise. On the other hand, depending upon the nature of the case and the relief sought, the amount of damages recovered may well be the most significant indication of t=he plaintiffs “degree” of success. As this Court has explained, “[a] reduced fee award is appropriate if the relief, however significant, is limited in com parison to the scope of the litigation as a whole.” Hensley, 461 U.S. at 440; see also Rivera, A ll U.S. at 574 (“The amount of damages a plaintiff recovers 19 is certainly relevant to the amount of attorney’s fees to be awarded under § 1988”). In the exercise of their sound discretion, and given their greater familiarity with the litigation, district courts are fully capable of undertaking such comparisons.12 Under this approach, there is no risk that courts’ recognition of plaintiffs’ status as ‘‘prevailing parties” necessarily will result in unwarranted awards of fees. By acknowledging that parties such as petitioners here have crossed the bare “statutory threshold” of being prevailing parties, courts still can account for any limitation in the parties’ success in the calculation of the “reasonable fee,” thereby carrying out Congress’ intention that statutory fee awards be “adequate to attract competent counsel, but . . . not produce wind falls to attorneys.” Senate Report, supra, at 6, re printed in 1976 U.S. Code Cong. & Admin. News at 5913. Accordingly, concern about the magnitude of fee awards is no basis for imposing a flat prohibition, not found in the statute, on attorney’s fees in cases involving only nominal damages. Instead, the courts can deal with the magnitude of the award directly by ensuring that the award is “reasonable” within the meaning of Section 1988. 12 Unlike determining the "central issue” or “primary relief sought,” which entails an “ ‘excruciatingly]’ ” difficult inquiry into the plaintiffs mental state, assessing the degree of success in light of the entire litigation is a straightforward task that this Court has repeatedly entrusted to district courts. See, e.g., Hensley, 461 U.S. at 440; Blanchard, 489 U.S. at 96; Texas State Teachers, 489 U.S. at 789-90. 20 CONCLUSION For the reasons stated above, the ABA submits that the Civil Rights Attorney’s Fees Awards Act of 1976 authorizes the award of reasonable attorney’s fees in cases in which civil rights plaintiffs recover nominal damages. Respectfully submitted, Talbot S. D ’A lem ber te * President American Bar Association E ric B. S c h n u r e r Ca r ter G. P h illips J o seph R. Gu e r r a 750 North Lake Shore Drive Chicago, IL 60611 (312) 988-5215 Counsel for Amicus Curiae April 9, 1992 * Counsel of Record