City of Riverside v Rivera Brief Amicus Curiae in Support of Respondents

    No. 85-224

In t h e

& u p r m r  ( t a r t  n f tljr l u i t r f t  &tatPB
O ctober T er m , 1985

C ity  of R iverside, et al.,
Petitioners,

v.

S antos R ivera, et al.,
Respondents.

on  w r i t  of  cer tior a ri  to  t h e  u n it e d  s t a t e s

COURT OF APPEAIjS FOR THE NINTH CIRCUIT

BRIEF AM ICU S CU R IA E  OF THE NAACP LEGAL 
DEFENSE ANI) EDUCATIONAL FUND, INC.

IN SUPPORT OF RESPONDENTS

J u l iu s  L eV o n n e  C h am bers  
C harles S te ph e n  R alston  

(Counsel of Record)
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae



r
!

» ■ 4-»' ̂  J

Question Presented

Whether attorneys' fees properly 

calcul a t e d  on the basis of reasonable 

hours and rates should be reduced solely 

on the basis of the size of the monetary 

recovery?

1



Table of Contents

Question Presented . . . . * • • • • • •  1

Table of Contents . . . .  , .* * • • • • •  11

Table of Authorities . ............................  I l l
Interest of Amicus ..............  7

Summary of Argument ............. 5

Arqument . .
............................ 6

I. Calculating Fees As A
Percentage of A Monetary 
Recovery is Improper in
A Civil Rights Case . . .  6

II. A Proportionality Rule Is
Contrary to Clear 
Congressional Intent . . .  i8

Conclusion . .
....................  24

Appendix

ii

Table of Authorities

Page

Cases :

Rivens v. Six Unknown Aqents,
403 U.S. 388 ( 19 7 1 ) ..........  15

Bob Jones University v. United
States, 461 U.S. 574 (1983) . 24

Brandon v. Holt, U.S. ,
83 r,.Rd.?d B7iTTl985) . . . . 1 1

But? v. Fconomou, 438 U.S. 478
( 1 9 7 8 ) .................. 1 1

Carev v. Piphus, 435 U.S. 247
( 1 9 7 8 ) .................. 12

Copeland v. Marshall, 641 F.2d
880 (D.C. Cir. 1980) . . . .  10

Hague v. C.I.O., 307 U.S. 496
( 1 9 3 9 ) ..................  1 2

Hensley v. Eckerhart, 461 U.S.
424 ( 1983 ) . . . .............  16

Johnson v. Click, 481 F.2d
1028 (2d Cir.), cert, denied 
sub nom. Fmplovee-Officer 
John, Number 1765 Badae No. v. 
Johnson, 414 U.S. 1033 (1973) 10

I.os Anaeles v. Lvons, 46 1 U.S.
9 5 ( 1983) .'...........  13

i i i



Monel 1 v. Dept, of Social
Services, 436 U.S. 658
(1978) ....................... n

New York Gasliqht Club v. Carey,
447 (J.S. 54 ( 1980 ) .........  1 7

Patsy v. Florida B d . of Repents,
457 U.S. 496 (1982) . . . .  23

Pierson v. Ray, 386 U.S. 547
( 1 9 6 7 ) .........................  14

Pulliam v . Allen, U.S.
80 l..Fd.2d 56 5 ( 1984) ~ ~  ' . n

Ruiz v. Fstelle, 550 F.2d 232
(5th Cir. 1 9 7 7 ) ...............  n

Scheuer v. Rhodes, 416 U.S. 232
< 1974> ....................    14

Tennessee v. Garner, 471 U.S.
85 L . E d . 2d 1 { 1985 ) . . . 12

Vasquez v. Hillery, U.S. ,
54 U.S.L.W. 406?TT . .
(January 14, 1986 . . . 23

Wood v. Strickland, 420 U.S. 308
 ̂1 9 7 5 ) .........................  1 3

Statutes;

42 U.S.C. <? 1983 .......................  3

42 U.S.C. s 1988 ................. passim

Leqal Fee Equity A c t ............ 22, 23

i v

S. 2802, 98th Conq., 2d
Sess. ( 1 9 8 4 ) .................. 22

S.1580, 99th Conq., 1st
Sess. ( 1 985 ) .................. 23

Other Authorities:

H.R. Rep. No. 94-1558, 94th Conq.,
2d Sess. (Sept. 25, 1976) . 13, 14

S. Rep. No. 94 -1011, 94th C o n q .,
2d Sess. (June 29, 1971) . . . 1 4

"Civil Riqhts Attorney's Fees
Awards Act of 1976; A 
Report to Conaress"
(National Association of 
Attorneys General, 1984) . . 18

Chambers and Goldstein, "Title 
VII at Twenty: The
Continuinq Challenqe,"
The Labor Lawyer, 235,
255-58 ( 1 9 8 5 ) ...............  18

"Counsel Fees In Public
Interest," A Report by The 
Committee On Leqal Assistance,
39 The Record of the
Association of the Bar of the
City of New York 300 (1904) . 4, 8

Daily Labor Report, Jan. 9,
’ 1986 ( B N A ) ....................  16

Legal Fee Equity Act; Hearing
Before the Subcommittee on the
Constitution of the Senate
Judiciary Committee  ̂ (98th Cono.
2d Sess., 1 9 8 4 ) ....................  2 1

v



Municipal Liability Under 42 [l.S.C
S 1983: Hearinqs Before the Snh-
committee on the Constitution of the
Senate Judiciary Committee. R7 rnnn
1st Sess. .......... .. 19, 20, 21

vi

No. 05-224

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBFR TERM, 1985

CITY OF RIVERSIDE, et a l ,

Pet it ioners,

v .

SANTOS RIVERA, et al.

Respondents.

On Writ of Certiorari to the United 
States Court of Appeals for the 

Ninth Circuit

BRIEF AMICUS CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS1 

The NAACP Lecial Defense and Educa­

tional Fund, Inc. has been in the fore-

Letters consent inn to the filing of this 
brief have been lodged with the Clerk of 
Court.

1



2

front of civil rights litiqation for many 

years. As part of that effort we have had 

a l°na standinq interest in the award of 

attorneys' fees adequate to ensure an 

appropriate level of private enforcement 

of the civil riqhts statutes. Thus, we 

have appeared as counsel or as amicus 

curiae in most of the leadinq civil riqhts 

attorneys' fees cases.

In the present case, in addition to 

the interest of the Leqal Defense Fund 

itself, we wish to present to the Court 

the interests and concerns of the private 

civil riqhts bar. The Leqal Defense Fund, 

other oroanizations, is dependent 

on the continuinq collaboration of 

private attorneys in brinqinq civil rights

Newman v. Piqqie Pack Bnternrico

| | ^ | B ^ _ 2 0 : i t y  of Richmond*! TTfi~~n~~o~1 
nn?Q) 7,!);-?Utt° Flnney. 437 U.S. 678 
1983 ' in : T ey V‘ KckerharV  461 U.S. 424

3

cases under 42 U.S.C. S 1983 and the 

various other civil riqhts statutes. Our 

nearlv 200 cooperating attorneys are 

p r i m arily sinqle practitioners and 

attorneys in small firms. Unlike attor­

neys in large firms, they cannot depend 

on major commercial clients to support 

their pro bono activities. And, unlike 

lawyers who specialize in personal injury 

litiqation, those who practice civil 

rights law cannot realistically depend 

upon a continuinq flow of cases in which 

substantial fees may be taken from the 

recovery by the plaintiffs as an agreed 

upon percentage. To a very large degree, 

they depend upon the award of fees 

adequate to compensate them for the time 

actually expended on the cases they win.

It was precisely for these attorneys 

and their particular type of practice that 

Congress enacted the various fee statutes.



4

If the arguments of petitioners and their 

aroici are accepted by this Court, these 

attorneys will, by and larqe, be driven 

out of the practice of civil rights law. 

The private enforcement of civil riahts 

cases will be undermined and the enforce­

ment of constitutional rights will be left 

almost exclusively to the pro bono efforts 

of a few large firms and to a few public

•interest organizations, which employ less
3

than 100 attorneys altoqether.

We submit that such a result, however 

much desired by petitioners and their 

amici , would be totally contrary to the 

intent of Congress.

See "Counsel Fees In Public Interest 
Litigation," A Report by The Committee On 
Leaal Assistance, 39 The Record of the 
Association of the Bar of the Citv of New 
York 300, 325 (1984).

5

SUMMARY OF AKCIIM KNT 

I .

Civil rinhts cases, even those in 

which there is a monetary recovery, cannot 

s i m p l i e t i c l y  be equated to contingent fee 

tort lici it at ion or other types of commer­

cial practice. Because of the large 

public issues and difficult legal ques­

tions involved, civil rights cases often 

require a substantial investment in time. 

Yet recoveries are typically small and 

uncertain; delays in payment are common­

place, in part because of litigation 

tactics of aovernment and defense attor­

neys. The adoption of a proportionality 

rule would, therefore, have a devastating 

effect on the ability of plaintiffs to

bring these cases.



6

II.

Conqress clearly did not intend that 

fees be calculated as a percentage of a 

monetary recovery. Repeated attempts to 

have the fees acts amended to include such 

a p r o v ision have been rejected by Con­

gress. Therefore, the Court should not

adopt the rule urged by petitioners and 

their amici.

ARGUMENT

I.

CALCULATING FEES AS A PERCEN­
TAGE OF A MONETARY RECOVERY IS

C A S E ° PER IN A CIVIL RIfiHTS

1- In an amicus brief filed earlier 

this term, we have described the nature of 

civil riqhts practice and why it cannot 

s i m p l 1st icly be equated to ordinary 

commercial litigation. See Brief Amici 

£iLLi£_e of the NAACP Legal Defense and 

Educational Fund, Inc., et a l ., in Evans

7

v. Jeff P. , No. R4-12PR, at «-14. We

r e s p e c t f u l 1y refer the Court to that 

d iscussion. Similarly, the parallel 

sought to be drawn here by petitioners 

and their amici between continoent fee 

tort l i t i g a t i o n  and civil rights litiga­

tion is totally inapposite.

If civil rights litigation were like 

tort litigation, no fee statute would have 

been necessary. Negligence cases can be 

e x t r a o r d i n a r i l y  lucrative. The risk of 

losing a certain percentage of cases is 

made up by larne fee recoveries in others. 

Further, the litigation of such cases is 

handled in the same manner as is other 

ordin a r y  commercial litigation. Thus, 

both parties are represented by an 

estab l i s h e d  bar that seeks reasonable 

c o m p r o m i s e  and the speedy disposition of

cases



8

The reality of civil riqhts litiqa- 

tion is far different. Defendants' 

attorneys, particularly when they repre­

sent aovernmental aqenci.es, do not see 

civil riqhts litiqation as ordinary cases 

that should be handled in an ordinary 

fashion. To the contrary, often they take 

umbraoe over the very fact that a lawsuit 

is filed. A common litiqation tactic of

defendant's counsel is to fiqht a case to 
4

the bitter end.

Moreover, as discussed fully in 

respondents' brief, Congress was fully 

aware both of the drawn out and protracted 

nature of civil riqhts litiqation as well 

as the overwhelming inequality of re­

sources between plaintiffs and defendants. 

City, county, and United States Attorneys, 

attorneys a e n e r a l , and aaency counsel, as 

well as the investiqative and support

T
See op cite supra n.3, at 322-23.

9

staff of qovernmental aqencies, are pitted 

against one or a handful of, at best, 

middle income plaintiffs and the few 

attorneys willinq to take on such odds. 

The fact of the matter is that local and 

state qovernments are well eauipped to 

protect their riqhts.

2. To the extent that public funds 

are unduly expended on fee awards, it has 

been our own experience that this is more 

often caused by the litiqation tactics of 

qovernment defense attorneys than by the 

actions of the plaintiffs. The present 

case provides a vivid example. It should 

have been settled early with a full 

apoloov to plaintiffs and a reasonable 

monet a r y  settlement. Instead it was 

founht with public funds in an unsuccess­

ful attempt to defend indefensible actions 

of police officers. As the Court of 

Appeals for the District, of Columbia noted



10

in Copeland v. Marshall. 641 F.2d 880, 904 

(D.C. Cir. 1980) (en banc), it is a 

qovernment's riqht to defend a case in any 

way it chooses, but once it has decided to 

defend a case to the death, it may not 

then be heard to complain when it is faced 

with a reasonable attorney's fee caused by 

its own litiqation tactics.

Even in cases where the defense has 

been reasonable, the nature of civil 

rights c l aims often results in extended 

litigation. Facts are often difficult

to qather; for example, even the identity 

of the appropriate defendants may be 

unknown or difficult to ascertain, see, 

e •q • • J o h n s o n  v. Click, 481 F.2d 1028 (2d 

Cir.), c e r t . denied sub n o m . Em-

£l_oyee-Off jeer John, No. 1765 Badge

Number, 414 U.S. 1033 ( 1973), a matter

rarely in dispute in ordinary tort 

litigation. Often, access both to the

vital information underlying the suit and 

to the plaintiffs themselves is controlled 

by the defendants. S e e , e.g. , Ruiz v. 

Estelle, 550 F.2d 238, 239 (5th Cir. 1977) 

("The record discloses that in response to 

tb^ir participation in this litioation, 

these inmates have been subjected . . . to 

threats, intimidation , coercion, punish­

ment, and discrimination, all in the face 

of p r o t e c t i v e  orders. . . ."). Moreover, 

u n c e r t a i n t i e s  in the law, particularly

regarding the liability of qovernment 
5

anencies and personnel actinq in their
6

official capacities, may lead to multiple

Fee Monel 1 v. Dept.-of Social Services, 
436 M.S. 658 (1°78); Brandon v. Holt, 
n.s. ____^  83 L.Fd.23'67ft (1485). -----

Fee , e . o . , Pulliam v. Allen , _____ U.S.
_, ^ 0 L . PH . 2d 56 5 ( 19 84) ; Butz v.

Fconomou, 438 U.S. 478 (1978); Pierson v. 
Rav, 386 U.S. 547 (1967).



12

appeals. Under petitioner's rule all such 

work no matter how reasonable or

necessary -- would, in effect, go uncom­

pensated .

3 * The inappropriateness of a

proportionality rule also follows from the 

fact that, for a variety of reasons, the 

availability of monetary and even injunc­

tive relief is limited in many civil 

rights cases. As long ago as Hague v. 

CIO, 307 U.S. 496 ( 1939), this Court

recognized that tortious invasions of 

constitutional rights were, by their 

nature, d i f f icult to measure in monetary 

terms. Under Carey v. Piphus, 435 U.S. 247 

(1978), a plaintiff may only be able to 

obtain minimal or only nominal damages. At 

the same time, a plaintiff who has 

suffered a past injury may not have

7-----------------
For example, there were two appeals in 
T e n n e s s e e  v. Garner, 471 U.S. , 85
L.Ed.2d 1 (1$85), before the case reached 
this Court, and further proceedings will 
be required before judgment is entered.

7

13

standinq to obtain injunctive relief if, 

as in this case, a repetition of the 

unconstitutional conduct is purely 

speculative. -Los- Angeles v. Lyons, 461 

U.S. 95 (1983).

Conqress was aware of these doctrines 

and their effect on the economic viability 

of civil rinhts litigation. Accordingly, 

it observed that

W h i l e  damages are theoretically 
available under the statutes 
covered by [§ 1988], it should 
be observed that, in some cases, 
immunity doctrines and special 
defenses, available only to 
p ublic officials, preclude or 
severely limit the damage 
remedy. Consequently, awardinq 
counsel fees to prevailinq 
plaintiffs in such litigation is 
particularly important and 
necessary if Federal civil and 
constitutional rights are to be 
adequately protected.

H.R. Rep. No. 94-1558, 94th Cong., 2d 

Sess. , at 9 (Sept. 15, 1976) (citing Wood 

. Str i c k l a n d ,v 420 U.S 308 ( 1975);



14

— e-uer V - R h '2i!£3. 416 U.S. 232 (,,7-1);

8"d 386 O.S. 547 < „ 6 7 ) )

(footnote omitted; emphasis added).”

But consider the result of a decision 

iqnorinq the implications of this legisla­

tive h i s t o r y  and imposing a rule making 

fees proportional to the amount in 

d a m a g e s . Inevitably, civil actions to

redress c e rtain types of constitutional 

violations w i n  not be brouqht solely

because they are unlikely to generate 

damage a wards large enough in support a 

proportional fee award -adequate to 

attract competent counsel.- s . Rcp. N o _

1011, ,4th Cong., 2d Sess., at 8 (June 

10761; H.R. Rep. No. ,4-1558 at ,. Not 

only will congress's clearly expressed 

purpose be subverted, but also the

vail inq plaintiffs * * * P re~
recover their counsel fee's - ° ^ narily

15

hope that damage suits can be a viable 

means to deter fourth amendment viola­

tions, see Bivens v. six Unknown Agents. 

403 n.S. 3 8 ft-, 411 (1971) (Burner, C.J.,

dissenting), will be frustrated; the only 

persons with a meaningful remedy will he 

criminal defendants.

The reality is plain. The Bill of 

Rights is not self-executinn; without 

Plaintiffs there will be no enforcement; 

without attorneys financially able to 

bring cases there will be no plaintiffs. 

The government's assertion that there are 

many attorneys who would take on these 

d i f f i c u l t  and time-consuming cases in the 

e x p e c t a t i o n  of a one-third fee from a 

$33,000 iudgment is not only belied by the 

facts of this case —  there were no local 

attorneys willing to take it —  but can 

onlv be described as a fantasy. it 

c e r t ainly has no relation to the real



16

world of civil riqhts practice as the 

Leqal D e f e n s e  Fund and its cooperating 

attorneys experience it every d a y /  or as 

Conaress viewed it when it considered and 

passed what is now $ 198R.

4. The arguments of the petitioner 

and its ajucl, particularly those of the 

United States, are totally contrary to 

c o n g r e s s i o n a l  intent and the decision of 

this Court in Hensley y. Eckerhart. 461 

U.S. 424 (1983). The government advances 

a number of arguments that it now states 

would limit the proportionality rule to 

those cases where the only relief sought

m i s s i o n  h Empl°yment Opportunity Com- 
! i o " an e"tirely different view 
than that of the Solicitor General
r u l e ^ n ^ h  thG !mpact of a proportionality rule on the private bar and the enforce-
ment/ f the civil rights acts. Indeed It 
urged that the United states support the 
J°Smlntlon,of respondents in this case, its 
memorandum to the Solicitor General was 
printed in full in the Daily Labor Report
t U  For the A , q 8 6 . <BNA>' ^  pp. E - 1 to 

the convenience of the Court, we

a p p e n d i ^ t o ^ t hi s  g i . ? ™ " * ' ”  on 'the*

17

or recovered is money damages in the 

nature of a tort recovery. But it is hard 

to see how or why the rule they seek can 

he so limited in the face of similarly 

worded and intentioned statutes. See New 

York Gaslight Club v. C a r e y , 447 U.S. 54, 

70-71 n. 9 (1980). Thus, in individual

mitle VII actions, defendants will soon 

assert that fees should be limited to a 

propor t i o n  of the backpay recovery. Such 

a rule would, of course, be devastating to 

Title VTI. Fven for a case involving an 

upper level ioh, a recovery of backpay for 

a person denied a promotion is unlikely to 

exceed S?0,000. Particularly when the 

defendant is a novernment employer (and we 

speak from 14 vears of experience in 

] it inat inn Title VTT cases against, the 

federal government), the achievement of 

that result may take hundreds, if not 

thousands, of attorney hours.



18

We, therefore, are able to state 

without nualiflcation that a rule of 

p r o p o r t i o n a l it y  would have the immediate 

and W holly predictable effect of drivinq 

from p r a c t i c e  those attorneys who are 

responsible for providing representation 

to civil rights plaintiffs in the vast 

ma iorlty of civil rights and Title VII 

litigation — single practitioners and 

attorneys from small firms.'0

II.

A PROPORTIONALITY Rnr p TC
S L T V T 0  CL“ * « * « « ■ " < * £

The respondents' brief sets out fully 

and interp r e t s  correctly the legislative 

M s t o r y  of the ,976 Fees net. t„ addi­

tion, „ e wish to bring to the Court's

See Chambers and Goldstein. " T i H o

L a b o / L w ^ y L ^ V r A ^ S ^ Y m ^ '  ' Th%

19

attention the fact that the federal 

government and state and local governments 

are now attempting to obtain from the 

Court through a restrictive interpretation 

of $ 1988 what they have so far tried but 

failed to achieve in Conaress. Indeed, so 

far they have been unable even to qet a 

bill out of subcommittee despite five 

years of effort.

At least as far back as 1981, an 

effort was begun to convince Conaress to 

amend drastically * 1988 and other fee 

acts as they affect government defendants. 

Manv of the arguments made here —  the 

alleged burdens on the courts and on local 

aovernments, the purported multiplicity of 

frivolous law suits, the unidentified 

attorneys aettinq rich by "windfalls" 

-- were made to Conaress. See Municipal 

Liability Under 4? u.s.C. $ 1981: Hearings

Before the Subcommittee on the Constitn-



20

t-'-0n ° F— ^hf> S e n ate .Judiciary Committee,. 

97th ronq., 1st Sess. (1981), pp. 147-52 

and 288-91 (Statement of National Insti­

tute of M u n i cipal Law Officers); 524-558 

(Statement of National Association of 

Attorneys General). Indeed, it was 

s p e c i f i c a l l y  recommended that the amount 

of fees be " i n c o r p o r a t e d]  ... into the 

amount being souqht in damages." And 

that:

If the case carves out a new 
area of civil rights law, or if 
the case will have a widespread 
impact, the prevailing party's 
attorney would be entitled to a 
larger fee than would be 
appropriate where the nature of 
the case is similar to a 
personal injury case, such as 
an injury suffered at the hands 
of a police officer. in the 
1f 1t1terL instance the judgment 
will be of little impact or 
interest beyond the parties 
d i r e c t l y  involved and the fees 
awarded should be so limited.

21

Id. at 291. However, the proposed fee 

statute failed to be reported out of 

committee.

Efforts to have $ 1988 amended

escalated with the issuance of "Civil 

Rights Attorney's Fees Awards Act of 1976: 

A Report to Congress," by the National 

Association of Attorneys General. See The 

Legal Fee Equity Act; Hearing Before the 

S u b c o m m i t t e e  on the Constitution of the 

Senate Judiciary Committee (98th Cong., 2d 

Sess, 1984), pp. 237-305. The Report 

urged that the Fees Act be amended 

s p e c i f i c a l l y  to prevent fees that were 

a l l e gedly disproportionate to monetary 

awards. Given as an example of a case in 

which "the amount of fees awarded was 

g r o s s l y  disproportionate to the degree of 

success on the merits" was this very case, 

Rivera v. City of Riverside, 679 F.2d 795

(9th Cir. 1982). Id. at 272-74.



22

This recommendation was incorporated 

into The Leoal Fee Equity Act (S.2802, 

98th Cong., 2d Sess. (1984)), which was 

drafted by the United States Department of 

Justice, id. at 3. Section 6 (b)(5 ) of the 

Act, which would have amended not only 

S 1988 but every other federal fees 

statute as it applies to federal, state 

and local governments, provided that fees 

will be reduced when:

(T]he amount of attorneys' fees 
otherwise authorized to be 
awarded unreasonably exceeds 
the monetary result or injunc­
tive relief achieved in' the 
proceeding.

Id. at 24-25. The section-by-section 

analysis states that the section is 

intended to deal with, for example, "cases 

where $ 1 0 0 , 0 0 0  is awarded in attorneys' 

fees for a $30,000 judgment." id. at

124-125

23

Aqain, the effort to amend the fees 

acts got nowhere and the bill died in 

s u b committee. The Legal Fee Equity Act 

was again introduced in the last session 

of Congress (S.1580, 99th Cong., 1st Sess. 

(1985)); see 131 Cong. Rec. S . 10876 (daily 

ed. Aug. 1, 1985). To date, it has gone 

nowhere in either house.

Thus, Congress has refused, despite 

persis t e n t  attempts by a consortium 

r e p r e s e n t i n g  all levels of government in 

this country, to amend § 1988 to incor­

porate the very rule urged by petitioners 

and their a m i c i . As recently noted in

V a squez v. Hillery, _____ u.S. _____, 54

U.S.L.W. 4068, 4071-72 (January 14, 1986), 

the Court is properly loath to interpret a 

statute to accomplish what petitioners 

have repeatedly sought but failed to 

obtain in Congress. Accord Patsy v.

Florida B d . of Regents, 457 U.S. 496



24

( 19 8 2 ) ; see also Bob Jones University y. 

United S t a t e s , 461 U.S. 574, 599-602

(1983). in light of the totality of its 

legisl a t i v e  history, the Fees Act cannot 

r e a s o n a b l y  be read to mean that fees are 

to be limited to a percentaoe of a 

monetary award in civil rights cases.

CONCLUSION

For the foregoing reasons, the 

decision below should be affirmed.

Respectfully submitted,

JULIUS LEVONNE CHAMBERS
CHARLES STEPHEN RALSTON 

(Counsel of Record)
99 Hudson Street 
16th Floor
New York, N. Y. 10013 
(212) 219-1900

Attorneys for Amicus Curiae

APPENDIX

Memorandum of the 
EEOC to the Solicitor 

General, Nov. 18, 1985.



EEOC Memora n d u m  to Solicitor General 
Charles Fried

Nov. 18, 1985

MEMORANDUM

TO: CHARLES FRIED 
Solicitor General 
Department of Justice

FROM: JOHNNY J. BUTLER 
General Counsel (Acting) 
Equal Employment Opportunity 
Commission

SUBJECT: Recommendation for participation 
as amicus curiae in City of 
Riverside v. Rivera, cert, 
qranted, 54 U.S.L.W. 3270 (Oct. 
22, 1985) (No. 85-224).

The Equal Employment Opportunity

Commission recommends participation in the 

above case as amicus curiae in support of 

r e s p o n d e n t s  Rivera ejt al̂ . (plaintiffs 

below). The brief for petitioner is due 

on December 5, 1985, and the brief for 

respondent is due on January 4, 1986.

Interest Of The Equal Employment Opportun-



2a

ity Commission

This case presents the question of 

what are the- appropriate standards 

governing an award of attorney's fees 

under 42 u.s.c. 1988 when the monetary 

amount reeovered in damages for violations 

Of constitutional and civil rights is less 

than the fees requested.' Resolution of 

this Issue w i n  affect substantially 

attorney's fee awards under Title VI I  of 

the Civil Rights Act of 1964, 42 U.S.C. 

2000e et s ^ .  Section ,988 was expressly 

modeled on Title VII's fee provision, 42

As discussed infra i-hic
e x p r e s s l y  rai's^3— in 1 su,e was not
certiorari ln the Petition for

: ™ i : > r , ••••- f l y ! ■

r
3a

U.S.C. 2000e-5(k), and standards developed 

in $1988 cases are applied to Title VII. 

See, e.g., Hensley v. Eckerhart, 461 U.S. 

424, 433 n. 7 (1983); S. Rep. No. 94-1011 

(1976) at 4-6.

Because Title VII provides solely for 

e q u i t a b l e  relief, monetary recovery is 

limited to amounts owed for back pay. 

S e ction 706(q), 42 U.S.C. 2000e-5(g ) . 2 

A c cordingly, the monetary recovery in an 

individual Title VII case may be relative­

ly meager. Petitioners contend, and 

J u s t i c e  Rehnquist's opinion on the stay 

application suggests he may agree, that an 

award of fees significantly larger than

The courts have held that compensatory and 
punitive damages are not available under 
Title VII. See Patzer v. B d . of Regents 
of Univ. of W i s e . , 7^3 F.2d 851, 854 n. 2 
(7th Cir. T W 5 T ;  Irby v. Sullivan, 737 
F. 2d 1419, 1423 (5th Cir. 1984); Walker v. 
Ford Motor C o . , 684 F.2d 1355, 1363-64 
(11th C i r . 19ft2) , and cases cited therein.



4a

the amount of damages awarded is per se 

unreasonable. (Reply br. at 2, 5; 54 

U.S.L.W. 3143-44). However, in a Title

VII case a rule restricting the award of 

attorney s fees solely because the dollar 

amount of damages is low could result in 

less than full relief for identified 

individual victims of discrimination who 

successfully bring suit. it would also 

discourage private attorneys from taking 

Title VII cases which involve only 

individual claims. These results are

contrary to Congress's intent that 

aggrieved individuals, serving as "private 

a t t o r n e y [s ) general," complement the 

Commission's enforcement efforts. See 

Christiansburg G a rment Co. v . E g „ a1 

Employment— Opportunity Commiss1n n r 434 
U.S. 412, 4 16-17 (1978), quoting, Newman

j ^ Piggie Park Rnterprisecr 390 u.s . 400f

5a

402 (1968). They are also inconsistent 

with the Equal Employment Opportunity 

C o m m i s s i o n ' s  recently stated policy that 

nothing less than "prompt, comprehensive 

and c o m p l e t e  relief for all individuals 

d i r e c t l y  affected by [employment discri­

minati o n ] "  is satisfactory. (See EEOC 

S t a t e m e n t  on Remedies and Relief For 

Individual Cases of Unlawful Discrimi­

nation, Feb. 5, 1985, copy attached). 

Accordingly, we believe that it is 

important that our views be presented to

the Court



6a

Background^

This suit arose from the violent 

breakup of a party at the home of Santos 

and Jennie Rivera by members of the police 

force of Riverside, California . 4 The 

Riveras and their guests, who were all of 

Mexican descent, claimed that the warrant­

less b r e ak-in of their house, accompanied 

by m a ssive amounts of tear gas, verbal 

abuse and, in some instances, severe 

physical abuse, violated their First, 

Fourth, Fifth and Fourteenth Amendment *

* e. b " e ° ur stater"ent on the opinions 
attached to the petition for certiorari,

L d C O T P l ,a ^ ' , and the P retrial order filed in district court. We have not
reviewed the rest of the record in this
CaSc •

« Vr . r ^ 0n3’^ n  plaintlffs herein, were 
RiJer. d ‘ chap9es against one, Santos 

?' 6re droPPed by the police 
department prior to the filinq of a

Ch/ Z geS against the other four were dismissed by the municipal court uDon
an explicit finding of no probable

7 a

rights, as well as their rights under the 

Civil Rights Act of 1870, 42 U.S.C. 1981, 

1983, 1986.

Plaintiffs initially named thirty 

members of the Riverside police department 

as defendants, as well as the chief of 

police and the city itself. At an early 

stage of the proceedings, summary judgment 

as to seventeen of the police officers was 

granted on the qround that they merely had 

been present at the arrest scene and were 

not personally responsible for the 

c o n s t i t u t i o n al  and other deprivations. 

(Pet. App. 8-1).

The litigation continued for a period 

of five years, culminating in a favorable 

jury award for all eight plaintiffs 

against six of the individually named 

remaining defendants and the City of 

Riverside. Total monetary damages awarded



8a

equalled $33,350.5 (Pet. App. 6- 1). The

liability determinations have never been

contested by the city or any other
defendant.

The district court entered an award 

of $ 2 4 5 , 4 5 6 . 2 5  as attorney's fees and 

costs for the preceding five years of 

litigation. (Pet. App. 6-1). The court 

awarded plaintiffs' attorneys essentially 

all the hours requested, disallowing 

certain costs as impermissible under 

S1988. The court based its decision on

1 ^ t h o u g h  plaintiffs initially requested 
injunctive and declaratory relief, those 
requests were not pursued at trial. As 
explained by respondents Rivera et al. in 
their opposition to the petition for 
certiorari, injunctive relief was not 
requested as an injunction ordering the
?°*ice fcn °bey the law was superfluous. (Resp. °pp. at 3 n . 3 ). The di8trlct
court, however, indicated that had such an 
0b€iy .̂th»f law" f u n c t i o n  been sought, it 
would have been granted based on the
bvV^ e yo ? ^ h  c°"stitutional violations 
App A °  fche officers. (See Opp. Cert.

9a

findings that, inter alia, the "action 

p r e s e n t e d  complex issues of law in a case 

involving eight individual plaintiffs, 

eleven individual defendants and a 

m u n i c i p a l  defendant" (Pet. App. 6-2); 

" [g] iven the nature of this lawsuit, many 

attorneys . . . would have been reluctant 

to in stitute this action" (Ibid.); and 

" [p]laintiffs maintained this civil action 

in order to secure the vindication of 

important constitutional rights." (Id. at 

6-5).

The court of appeals upheld the 

award. (Pet. App. 5-1). It refused to 

reduce the award because of the unnecess- 

ful[sic] claims, concluding that they were 

related to the successful claims. (Id. at 

5-9). The court also rejected defendants'



10a

contention that the amount of attorney’s 

fees award must be proportionate to the 

iury verdict. (id. at 5-11 - 5-13).

Thereafter, a petition for writ of 

certiorari was granted, and the fees 

judgment was vacated and remanded for 

further proceedings in light of Hensley v.

E c k e r h a r t , 461 U.S. 424 ( 1983) . (Pet.

App. 4-1).

Af ter a subsequent hearing and

briefing , and after reconsidering the

record, the district court affirmed the 

original fee award. (Pet. App. 2-1). The 

court found that the relatively small size 

of the damage award resulted from "(a) the 

general reluctance of jurors to make large 

awards against police officers, and (b)

the d i g n i f i e d  restraint which the plain-

- 1 la -

tiffs exercised in describing their

injuries to the jury." (Id. at 2-5) 6
•

The court refused to reduce the award

because of the unsuccessful claims, 

finding that plaintiffs were successful on 

the "central and most important 

issue . . . [of] whether there was police 

m i s c o n d u c t ; "  "all claims . . .  were based 

on a common core of facts;" and "[t]he

At the hearing, the district court 
elaborated on this point, stating:

I have tried several civil rights 
violation cases in which police 
officers have figured and in the main 
they prevailed because juries do not 
bring in verdicts against police 
officers very readily nor against 
cities. The size of the verdicts 
against the individuals is not at all 
surprising because juries are very 
reluctant to bring in large verdicts 
against police officers who don't 
have the resources to answer those 
verdicts. The relief here I think 
was absolutely complete. (Resp. App. 
B— 5) .



12a

claims on which plaintiffs did not prevail 

were closely related to the claims on 

which they did prevail" and "cannot 

reasonably be separated. . . . at

2-6 ) . 7 The court found that the amount of 

time expended by counsel "reflected sound 

leqal judgment" and was reasonable because 

" fc]ounsel for plaintiffs achieved 

excellent results . . . .« (i d . at 2-7

-2-8). The district court stated that it 

was

shocked at some of the acts of the 
police officers in this case and was 
convinced from the testimony that 
these acts were motivated by a 
general hostility to the Chicanes 
community in the area where the 
incident occurred. The amount of 
time e x p e n d e d  by plaintiffs' counsel 
in conducting this litigation was 
clearly reasonable and necessary to

The court noted that given the conflicting 
testimony about the roles of individual 
police officers, "fujnder the circum­
stances of this case, it was reasonable
onp ^1!i1|nt|ii fS 1 initially to name thirty- 
one individual defendants." (Pet. App.

13a

serve the public interest as well as 
the interests of plaintiffs in the 
v i n d i c a t i o n  of their constitutional 
rights.

(Id. at 2-8 - 2-9).

The court of appeals affirmed, 

finding that the district court had 

c o r r e c t l y  reconsidered the case in light 

of Hensley and that the fee award was 

within the district court's discretion. 

(Pet. App. 1-4). The court held that the 

record supports the district court's 

findinas that all the claims involved 

common facts and related legal theories. 

(Id. at 1-6). According to the court of 

appeals, the district court followed 

H e n s l e y 's precepts by focusing on "the 

d egree of success in relation to the 

ultimate award of fees and [finding] a 

reasonable relationship between the extent



14a

of that success and the amount of the 

award." (Id. at 1-7). The court of 

appeals again rejected "the proposition 

that there need be a relationship between 

the amount of damages . . . and the amount 

of a ttorney's fees . . . ." (id. at 1-8 

-1-9).

On August 9, 1985, defendants filed a 

petition for a writ of certiorari, 

presenting the question "(wjhat are the 

proper s t a n d a r d s  within which a district 

court may exercise its discretion in 

awarding attorney's fees to prevailing 

parties under Section 1988 . . . ." 

Petitioners contended generally that the 

district court abused its discretion and 

disregarded Hensley by failing to reduce 

the fee award. (Pet. 29-37). Petitioners 

challenged a number of specific aspects of 

the fee award, primarily the court's

15a

failure to reduce the hours allotted for 

seven items. (Pet. 40-46). Petitioners 

also argued that counsel for plaintiffs' 

time records were inadequate. (Pet. 

49-58).8

On August 28, 1985, Justice Rehnquist 

issued his opinion on the stay applica­

tion, d i s c u s s i n g  solely the "significant 

q u e s t i o n  (presented in this case] invol­

ving the construction of §1988: should a 

court, in determining the amount of 

'reasonable attorney's fee' under the

statute, consider the amount of monetary
g

damages. . . . "  54 U.S.L.W. at 3143. In

15-----------------------------The petition only obliquely refers to the 
district court's decision not to reduce 
the fees to account for unsuccessful 
claims. S e e , e , g . , Pet. at 35, 54.

g
J u s t i c e  Rehnauist noted that the issue 
framed by petitioners "is not a model of 
specificity, [but] it does 'fairly 
subsume,' inter alia, the dispropor- 
tionality issue." 54 U.S.L.W. at 3143.



16a

his view, "the award of attorney's fees in 

this case, representing more than seven 

times the amount of the monetary judgment 

obtained, is so disproportionately large 

that it could hardly be described as 

'reasonable.' "Id. at 3144. After noting 

a split in the circuits on the issue, 

Justice Rehnquist found that "(n)either 

Hensley nor Blum . . . addressed whether

disproportionately between the amount of 

the m o n etary judgment obtained and the

Justice Rehnquist contrasted DiFilippo v. 
Morizio, 759 F.2d 231 (2d Cir. 1965), and 
Ramos v . L a m m , 713 F.2d 546 (10th Cir. 
1983), which held that the size of the 
award alone does not warrant reduction of 
a fee, with Bonner v. Coughlin, 657 F.2d 
931 (7th Cir” 1981), which held that the 
amount of the recovery may indicate the 
reasonableness of the time spent. 54 
U.S.L.W. 3144. He failed to cite a later 
Seventh Circuit decision, Lynch v. City of 
Milwaukee, 747 F.2d 423 (7th Cir. 1984), 
wh ich held that an award of nominal 
damages does not warrant reduction of the 
fee award where the plaintiff primarily 
sought nonmonetary relief.

17a

amount of the attorney's fee, standing 

a l o n e , is a consideration that might 

p r o p e r l y  lead a court to reduce the fee." 

Ibid. (emphasis added). He concluded 

that, except in cases involving primarily 

injunctive relief or defendants' bad faith 

conduct, "the time billed for a lawsuit 

must bear a reasonable relationship not 

only to the difficulty of the issues 

involved but to the amount to be gained or 

lost by the client in the event of success 

or failure." Ibid. Justice Rehnquist 

held that the probability of petitioners' 

success on this issue was sufficiently 

great to warrant a stay.

After the issuance of Justice 

Rehnquist's opinion, the disproportionali- 

ty issue was briefed by respondents in 

their opposi t i o n  to the petition and was 

the focus of petitioners' reply brief.



18a

Discussion^ ̂

It is our position that the size of 

the damage award, standing alone, does not 

justify r e d u c t i o n  of the attorney's fees 

award for counsel time otherwise reason­

ably e x p ended on successful claims. This 

is not to say, however, that the amount of

monetary relief is irrelevant. The

Supreme Court held in Hensley v.

E c k e r h a r t , 461 U.S. 424, 436 ( 1983), that 

"the most critical factor (in setting a 

fee award] is the degree of success

We will discuss the legal issue of whether 
an award of attorney's fees must be in 
proportion to the monetary relief awarded. 
The petition also raises numerous factual 
issues regarding the reasonableness of the 
hours expended by plaintiffs' counsel. We 
take no position on these issues, the 
resolution of which depends on a review of 
the full record. However, in our view, 
the factual issues articulated by peti­
tioners are not sufficiently significant 
to warrant briefing by the government, 
particularly inasmuch as the standard of 
review is abuse of discretion.

19a

obtain e d . "  The amount of relief awarded 

is one consideration in determining 

p l a i n t i f f ' s  level of success. However, 

the d a m a g e  award can not be viewed in a 

vacuum or in absolute terms, as peti­

tioners contend. See reply br. at 5. 

Rather, to measure success the amount of 

monetary relief awarded should be compared 

to the relief which is sought or could be 

r e a s o n a b l y  expected if plaintiff were 

fully successful. This approach is 

c o n s i s t e n t  with the intent and purpose of 

the fee-s h i f t i n g  statute, the standards 

adopted in H e n s l e y , and the near uniform 

view of the courts of appeals. Because 

the district court basically followed this 

approach, we recommend supporting respon­

dents on this legal issue.



20a

1. In the context of Title VII, the 

Supreme Court recognized in Christiansburg 

Garment Co. v. EEOC, 434 U.S. 412, 418

(1978), that individual plaintiffs are the 

"chosen instrument[s] of Congress to 

vindicate 'a policy that Congress con­

sidered of the highest priority.'" 

Quoting, Newman v. Piggie Park Enter­

p r i s e s , 390 U.S. 400, 402 (1968). There 

are "strong equitable considerations" for 

granting plaintiffs fees, particularly 

because they are being "award[ed]. . . 

against a violator of federal law." 434 

U.S. at 418. Thus, the legislative 

history of Title VII demonstrates that 

"one of Congress's primary purposes in 

enacting the section (providing attorney's 

fees to a prevailing party] was to 'make 

it easier for a plaintiff of limited means 

to bring a meritorious suit.'" 434 U.S.

21a

at 420, quoting, 110 Cong. Rec. 12724 

(1964) (remarks of Sen. Humphrey). Accord, 

New York Gaslight Club v. C a r e y . 447 U.S. 

54, 63 (1980). The same policies underlie 

the Civil Rights Attorney's Fees Awards 

Act of 1976, 42 U.S.C. 1988. The Senate 

report found that "fees are an integral 

part of the remedy necessary to achieve 

c o m p l i a n c e  with our statutory policies." 

S. Rep. No. 94-1011 (1976) ("Senate

Report") at 3. See also, e.g., Senate 

Report at 2 (enforcement of civil rights 

laws "depend [s] heavily upon private 

e n f o r c e m e n t  and fee awards have proved an 

essential r emedy if private citizens are 

to have a meaningful opportunity to 

vindi c a t e  . . .  important Congressional 

policies"); H.R. Rep. No. 94-1558 (1976) 

at 1 ("House Report") ("effective enforce­



22a

ment of Federal civil rights depends 

largely on the efforts of private citi­

zens" ).

The standard suggested by Justice 

Rehnauist —  that attorney's hours 

otherwise reasonable and necessary to the 

litigation should not be fully compensated 

if their value exceeds the amount of 

damages recovered —  will necessarily 

cause attorneys to pursue less vigorously 

claims of low monetary value, such as 

those involving single individuals. This 

would d efeat the purpose of the fee-shif­

ting s t a tutes to encourage full enforce­

ment of civil rights laws. It would also 

frustrate Congress's intent to award fees 

"adequate to attract competent counsel, 

but which do not produce windfalls" 

(Senate Report at 6 ), inasmuch as compe­

23a

tent attorneys will have less incentive to 

repre s e n t  individual claimants who cannot 

finance their own litigation.

The legislative history of S1988 and 

other fee provisions demonstrate that the 

level of monetary recovery should not, of 

itself, d i c t a t e  the amount of attorney's 

fees. For example, the Senate Report 

states: "It is intended that the amount

of fees awarded . . .  be governed by the 

same standards which prevail in other 

types of equally complex Federal liti­

g ation . . .  and not be reduced because 

the rights involved may be nonpecuniary in 

nature." Senate Report at 6 (emphasis 

added). See also 122 Cong. Rec. 31832 

(September 22, 1976) (Remarks of Sen. 

H a t h a w a y  in support of bill which became 

§1988) ("In the typical case . . . the 

c i tizen who must enforce the [civil



24a

rights] provisions through the courts has 

little or no money with which to hire a 

lawyer, and there is often no damage claim 

from which an attorney could draw his 

fee.") Similarly, the House Report 

recognized that not all civil rights 

litigation results in large damage awards, 

and that "in some cases immunity doctrines 

and special defenses . . .  preclude or 

severely limit the damage remedy. Conse­

quently, awarding counsel fees to pre­

vailing p laintiffs in such litigation is 

particularly important and necessary if 

Federal civil and constitutional rights 

are to be adequately protected." House 

Report at 9 . 12

T2---------------------- —
The legislative history's citation to 
three early attorney's fees cases is 
significant. In the Senate Report (at 6 ), 
Congress cited approvingly use of the 
Johnson v. Georgia Highway Express, 488 
F.id 714 (5th Cir. 1974), factors and gave 
as examples of their correct application 
three cases: Stanford Daily v. Zurcher,

25a

2. Reduction of a fee award based 

solely on the amount of damages recovered 

is also inconsistent with the standards 

for a s s e ssing fees previously established 

by the Supreme Court. In Hensley v. 

Eckerh a r t , the Court clarified the means 

by which "adequate" fees are to be 

determined: initially, the "number of 

hours reason a b l y  expended on the litiga­

tion [is] multiplied by a reasonable

hourly rate." 461 U.S. at 433. Thi

figure , sometimes called the "lodestar

( e .g . Copeland v. Marshall , 64 1 F . 2d 880

890-91 (D .C . c i r . 1980) (en banc)), i:

then subject to further adjustment based,

64 F.R.D. 680 (N.D. Ca. 1974); Davis v. 
C o u n t y  of Los Angeles, 8 E.P.D^ i| 9 4 4 4 
(C.D. Ca. 19*74) ; and Swann v. Charlotte- 
Meek lenburg Bd. of E d . , 66 F.R.D. 663 
(W. D. N. C . 1 97*5) . In none of those cases 
were large amounts o f monetary damages 
awarded, if any, and, in the Stanford 
Daily case, no injunctive relief was 
ordered either.



26a

among other things, on the "'results 

obtained.'" 461 U.S. at 434, quoting, 

Johnson v. Georgia Highway Express, Inc., 

488 F . 2d 714 (5th Cir. 1974). However, 

the Court made it clear that "[w]here a 

plaintiff has obtained excellent results, 

his attorney should recover a fully 

compensatory fee. Normally this will 

encompass all hours reasonably expended on 

the litiga t i o n  . . ." 461 U.S. at 435. 

This holding forecloses any argument that 

a fully successful plaintiff should be 

awarded less than a fully compensatory fee 

solely b e c a u s e  the amount of damages at 

issue was low.

Furthermore, as noted above, the 

Court d i r e c t e d  that in setting fees the 

primary consideration should be on whether 

the "degree of success" justified the 

hours e x p ended on the litigation. There

27a

can be no question that where a signifi-

cant aspect of the relief sought is

monetary, the amount of the damages is

relevant in measuring the degree of

success. However, the Court's repeated

of terms such as "degree of success"

U.S. at 436 ), "extent of success"

at 438, 439 n. 14), and "level of

success" (id. at 434, 439), indicate that 

the important comparison is between the 

relief sought and the relief obtained.

The Court in Hensley specifically 

rejected a "precise rule or formula" or a 

" m a t hematical approach" to determine 

attorneys' fees by comparing the number of 

successful claims to the total number of 

claims asserted. 461 U.S. at 436, 435 n. 

11. As the Court remarked: "Such a ratio 

provides little aid in determining what is 

a r e a s o n a b l e  fee in light of all relevant



28a

factors." 461 U.S. at 435-36 n. 11. The 

Court also rejected a strict mathematical

approach in Blum v. Stenson, _____ U.S.

___ t 104 S.Ct. 1541 , 1549-50 n. 16 ( 1984),

holding that the numbers of persons 

benefitted is not a valid consideration in 

setting fees. The Court commented, 

■presumably, counsel will spend as much 

time and will be as diligent in litigating 

a case that benefits a small class of 

people, or indeed, in protecting the civil 

rights of a single individual." Ibid. For 

the same r e a s o n  —  that counsel's dili­

gence will not vary according to the 

amount involved —  a mathematical formula 

requiring that the fee award be in 

proportion to the damages is improper.

Justice Rehnquist suggests that any 

attorney using "billing judgment" would 

not bill more than the amount recovered.

29a

54 U.S.L.W. at 3144. However, as the 

above cited legislative history reflects, 

the purpose of the civil rights fee-shif­

ting provisions is to allow individuals to 

obtain redress for infringement of rights 

which cannot be valued in strict monetary 

t e r m s . ^  See Jaquette v. Black Hawk 

County, I o w a , 710 F.2d 455, 460 (8th Cir.

J u s t i c e  Rehnquist would not apply a 
mathematical formula to cases involving 
primarily injunctive or other nonpecuniary 
relief. 54 U.S.L.W. at 3144. However, 
the same rights are involved, and in some 
Title VII cases this distinction makes 
little sense. For example, two indivi­
duals may have identical claims alleging 
discrimination in their employer's failure 
to promote them to jobs paying $4,000 more 
per year. One obtains $10,000 in back pay 
and an injunction ordering his promotion. 
The other obtains $10,000 in back pay but 
does not seek an injunction because before 
trial he found a higher paying job. If 
each incurred $15,000 in attorney's fees 
on the liability issue, there is no 
logical basis for concluding that the 
amount of fees is reasonable in one case 
because an injunction was obtained, but it 
is per se unreasonable in the other case 
b e c a u s e  it is disproportionate to the 
amount of recovery.



30 a

1983) ("marketplace factors are often

absent f rom civil rights 1 it igation,"

because "it is difficult to place a

pecuniary value on relief sought when the 

injury involves the infringement of the 

civil or constitutional rights of a 

plaintiff"). Furthermore, the "billing 

judgment" required of counsel is to 

"exclude from a fee request hours that are 

excessive, redundant, or otherwise 

unnecessary . . . ." Hensley, 461 U.S. at 

434. We find no support in Hensley or any 

other a u t h o r i t y  for excluding under the 

rubric of "billing judgment" compensation 

for n e c e s s a r y  hours expended on a suc­

cessful civil rights claim.14

The determination that the number of hours 
is "reasonable" necessarily includes a 
finding that there was a valid reason for 
the hours expended. For example, in an 
individual Title VII case, substantial 
attorney time may be required because of 
the complexity of the legal issues or 
because of defendant's tactics. If there

31a

3. A look at the p e r t i n e n t  r e c e m  

court of appeals' decisions reveal near 

uniform agreement that the size of the 

d amage award is one relevant factor in 

assessing the amount of fees, but that 

there is no necessary proportional 

relationship between the amount of damages 

the amount of fees awarded. See Nephew v. 

City of A u r o r a , 766 F.2d 1464, 1467 (10th 

Cir. 1985)7 DiFilippo v. Morizio, 759 F.2d 

231, 235-36 (2d Cir. 1985); Lynch v. City 

of M i l w a u k e e , 747 F.2d 423, 428-29 & n. 5 

(7th Cir. 1984); Wojtkowski v. C a d e , 725 

F .2d 127, 131 (1st Cir. 1984); Jaguette v. 

Black Hawk County, Iowa, 710 F.2d 455, 

458, 461 (8th Cir. 1983); Perez v.

is no valid explanation for the amount of 
work, it is not reasonable. In this case, 
the district court found that the hours 
were reasonably expended in view of the 
complexity of the case. (Pet. App. 2-2). 
P e t itioner's real quarrel is with this 
determination, as their petition reflects.



32a

University of Puerto Rico, 600 F.2d 1, 2 

(1st Cir. 1979); Burt v. A b e l , 585 F.2d 

613, 618 (4th Cir. 1978); See also Bonner 

v. C o u g h l i n , 657 F.2d 931, 934 (7th Cir. 

1981).15

Justice Rehnquist cites two cases 
— DiFilippo v. Morizio and Ramos v. Lamm, 
7IT F . 2d 541T ( 1 rtth Cir. 1553) --for the 
proposition that courts of appeals have 
held that the amount of damages received 
is not a permissible factor in awarding 
attorney's fees. DiFilippo, however, 
holds that comparison of damages to 
"typical . . . awards in the same type of 
case" is relevant. 759 F.2d at 236. While 
Ramos does state that fees should not be 
reduced because the recovery is small, the 
Tenth Circuit subsequently distinguished 
Ramos on the around that only declaratory 
and injunctive relief had been requested. 
Nephew v. City of Aurora, 766 F.2d at 
1465-66.

In Cunninqham v. City of McKeesport, 
753 F . 2d 262, 268-69 (3rdCir. 1985), pet. 
for cert, filed, 53 U.S.L.W. 3839 (May 14, 
1985), also cited by Justice Rehnquist, 
the court of appeals held that it was 
incorrect for the district court to reduce 
the attorney's fee award by 50% on grounds 
not raised by defendants. The issue 
reqarding the proportion of fees sought 
($35,000) to damages awarded ($17,000) was 
discussed chiefly in a statement by Judge 
Adams dissenting from the denial of

33a

C ourts which have analyzed the issue 

in detail after Hensley have recognized 

that the amount of damages is appropriate­

ly c o n s i d e r e d  as one measure of the level 

of success. See Nephew v. City of Aurora, 

766 F.2d at 1466-67; DiFilippo v. Morizio, 

759 F . 2d at 231; Jaguette v. Black Hawk 

County, Iowa, 710 F.2d at 461. The 

relevant comparison is "whether the size 

of the award is commensurate with awards 

in [similar] cases generally, rather than 

w h ether the award viewed in some absolute 

terms is high or low." DiFilippo, 759 

F.2d at 235. Another possible comparison 

is between the "remedy sought . . . and 

remedy o b t a i n e d  . . . ." Jaguette, 710 

F .2d at 461. Where the comparison reveals 

that "plaintiffs won an unambiguous

rehearing en b a n c .



34a

victory . . . their attorneys should

recover a fully compensatory fee." 

DlFilippOf 759 F.2d at 235.

4. The d i s t r i c t  court in this case 

correctly considered the size of the 

damage award in relation to the relief 

reasonably to be expected in this kind of 

case. The court found that the size of 

the award did not reflect limited success, 

but rather it resulted from a jury's 

general reluctance to make large awards 

against p o l i c e  officers and respondents' 

refusal to "play up" their "insulting and 

humiliating" injuries. (Pet. App. 2-5 

-2-6). The court pointed out at the 

hearing that respondents were much more 

successful than the plaintiffs in several 

other civil rights cases, with which the 

court was familiar, involving police 

officers and cities. (Resp. App. B-5).

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Accord i n g l y ,  the court found that respon­

dents had achieved "excellent results." 

(Pet. 2-7).

The district court can be criticized 

for not m a k i n g  more detailed findings and 

for r e l ying solely on its own experience 

in d etermining that the results were 

b etter than those generally obtained in 

the same kind of case. Nevertheless, the 

court appropriately considered the size of 

the damage award as one relevant factor in 

d e t e r m i n i n g  the extent of success, and 

p e t i t i o n e r s  have pointed to nothing which 

indicates that the court's findings 

regarding the damage award were erroneous.

Accordingly, we recommend that a 

brief be filed in favor of respondents 

d i s c u s s i n g  the legal standards to be



V t

- 36a -

applied to requests for attorney's fees 

greater than the amount of the monetary 

judgment.