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

    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