City of Riverside v. Rivera Brief Amicus Curiae

    No. 85-224

I n  t h e

Supreme (Emtrt of tty Intfrit &Ut?&
October T erm, 1985

City of R iverside, et al., 

v.
Petitioners,

Santos R ivera, et al.,
Respondents.

ON w r i t  o f  c e r t i o r a r i  t o  t h e  u n i t e d  s t a t e s  
COURT OF APPEALS FOR THE N IN T H  CIRCUIT

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

IN SUPPORT OF RESPONDENTS

J ulius L bV onnb Chambers 
Charles Stephen R alston 

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

Attorneys for Amicus Curiae



Question Presented

Whether attorneys' fees properly 
calculated 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 . . ............... i
Table of Contents..............   ii
Table of Authorities..................iii
Interest of Amicus .................  1
Summary of Argument .................  5
Argument ............................ 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 . . .  18

Conclusion.......................... 24
Appendix

ii



Page
Cases:
Bivens v. Six Unknown Agents,

401 U.S. 388 (1971) . . . . .  15
Bob Jones University v. United

States, 461 U.S. 574 (1983) . 24
Brandon v. Holt, U.S. ,

83 L.Ed.2d 878 (1985) . . . .  11
Butz v. Fconomou, 438 U.S. 478

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

" ( 1978)...............  12
Copeland v. Marshall, 641 F.2d

880 (D.C. Cir. 1980) . . . .  10
Hague v. C.I.O., 307 U.S. 496

(1939) ...................... 12
Hensley v. Eckerhart, 461 U.S.

424 ( 1 9 8 3 ) ........... 16
Johnson v. Click, 481 F . 2d

1028 (2d Cir.), cert, denied 
sub nom. Employee-Officer 
John, Number 1765 Badge No. v. 
Johnson, 414 U.S. 1033 (1973) 10

Los Anaeles v. Lyons, 461 U.S.
95 ( 1983) / .........  13

Table of Authorities

i i i



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

New York Gaslight Club v. Carey,
447 U.S. 54 ( 1980).. 17

Patsy v. Florida Bd. of Reqents,
457 U.S. 496 (1982) . . .  . 23

Pierson v. Ray, 386 U.S. 547
( 1967)...............  14

Pulliam v. Allen, U.S. ,
80 L .Ed.2d 565 ( 1984 ) . . . . 1 1

Ruiz v. Estelle, 550 F.2d 232
(5th Cir. 1977) . ...........  1 1

Scheuer v. Rhodes, 416 U.S. 232
( 1974).....................  14

Tennessee v. Garner, 471 U.S. ___,
85 L.Ed.2d 1 (1985) . . . . .  12

Vasquez v. Hillery, U.S. ,
54 U.S.L.W. 4068 ...........
(January 14, 1986 . . . . . .  23

Wood v. Strickland, 420 U.S. 308
( 1975).....................  13

Statutes:
42 U.S.C. $ 1983 .. .............. 3
42 U.S.C. § 1988 .................passim
Legal Fee Equity Act . . . . . .  22, 23

iv



S. 2ft02, 98th Cong., 2d
Sess. (1984) ...............

S. 1580, 99th Cong., 1st
Sess. ( 1985 ) . .............

Other Authorities;
H.R. Rep. No. 94-1558, 94th Cong.,

2d Sess. (Sept. 25, 1976) . 13
S. Rep. No. 94-1011, 94th Conn.,

2d Sess. (June 29, 1971) . . .
"Civil Rights Attorney's Pees 

Awards Act of 1976: A
Report to Congress"
(National Association of 
Attorneys General, 1984) . .

Chambers and Goldstein, "Title 
VII at Twenty: The
Continuing Challenge,"
The Labor Lawyer, 235,
255-58 ( 1985) . . . . . . .

"Counsel Fees In Public
Interest," A Report by The 
Committee On Legal Assistance, 
39 The Record of the 
Association of the Bar of the 
City of New York 300 (1984) .

Daily Labor Report, Jan. 9,
 ̂1986 (BNA) .................

Legal Fee Equity Act: Hearing
Before the Subcommittee on the
Constitution of the Senati
Judiciary Committee^ (98th Cong.
2d Sess., 1984) .................

23

, 14 

14

18

18

4, 8 

16

22

21
v



Municipal Liability Under 42 U.S.C.
$ 1983; Hearings Before the SuF^ 
committee on the Constitution of~~the 
Senate Judiciary Committee, 97 Cong.,
1st Sess. ( 1981 ) ........... 19, 20, 21

vi



No. 85-224
IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

CITY OF RIVERSIDE, et al ,
Petitioners, 

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 
DEFENSF AND EDUCATIONAL FUND, INC.

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS1 
The NAACP Legal Defense and Educa­

tional Fund, Inc. has been in the fore-

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

1



2

front of civil riqhts litigation for many
years. As part of that effort we have had
a long standing interest in the award of
attorneys' fees adequate to ensure an
appropriate level of private enforcement
of the civil rights statutes. Thus, we
have appeared as counsel or as amicus
curiae in most of the leading civil rights

2
attorneys' fees cases.

In the present case, in addition to 
the interest of the Legal Defense Fund 
itself, we wish to present to the Court 
the interests and concerns of the private 
civil riqhts bar. The Legal Defense Fund, 
as are other organizations, is dependent 
on the continuing collaboration of 
private attorneys in bringing civil rights

E.q., Newman v. Piqqie Pack Enterprise, 
Inc. , 390 U.S. 400 ( 1968); Bradley v. 
School Bd. of City of Richmond, 416 U.S. 
696 (1974)7 Hutto v. Finne7y7~437 U.S. 678 
(1978); Hensley v. Eckerhart, 461 U.S. 424 
(1983); Johnson v. Georqia Highway Express 
Co., 4 88 F“. 2d 71 4 ( 5th~C i r . 1974).



3

cases under 42 U.S.C. § 1983 and the 
various other civil rights statutes. Our 
nearly 200 cooperating attorneys are 
primarily single practitioners and 
attorneys in small firms. Unlike attor­
ney's in l a m e  firms, they cannot depend 
on major commercial clients to support 
their pro bono activities. And, unlike 
lawyers who specialize in personal injury 
litigation, those who practice civil 
rights law cannot realistically depend 
upon a continuing 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 
Conqress enacted the various fee statutes.



4

If the arguments of petitioners and their 
amici 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 oraanizations, which employ less

3
than 100 attorneys altogether.

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 
Legal Assistance, 39 The Record of the 
Association of the Bar of the Citv of New 
York 300, 325 (1984).



5

SUMMARY OP ARCUMKNT

Civil riahts cases, even those in 
which there is a monetary recovery, cannot 
simplist.icly be equated to contingent fee 
tort limitation or other types of commer­
cial practice. Because of the large 
public issues and difficult legal ques­
tions involved, civil riqhts 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 devastatinq 
effect on the ability of plaintiffs to 
brinq these cases.



- 6

II.
Congress 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 provision 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 
IMPROPER IN A CIVIL RIGHTS 
CASE

1. In an amicus brief filed earlier 
this term, we have described the nature of 
civil rights practice and why it cannot 
simplisticly be equated to ordinary 
commercial litigation. See Brief Amici 
Curiae of the NAACP Legal Defense and 
Educational Fund, Inc., et al., in Evans



7

v. Jeff n., No. R4— 1288, at <>-1 4. We 
respectfully refer the Court to that 
discussion. Similarly, the parallel 
sought to be drawn here by petitioners 
and their amici between continaent. fee 
tort litigation and civil riahts litiga­
tion is totally inapposite.

I f civil riahts litigation were 1 ike 
tort litiqation, no fee statute would have 
been necessary. Negligence cases can be 
extraordinarily lucrative. The risk of 
losing a certain percentage of cases is 
made up by larqe fee recoveries in others. 
Further, the litiqation of such cases is 
handled in the same manner as is other 
ordinary commercial litigation. Thus, 
both parties are represented by an 
established bar that seeks reasonable 
compromise and the speedy disposition of
cases



8

The reality of civil rights litiga­
tion is far different. Defendants' 
attorneys, particularly when they repre­
sent aovernmental agencies, do not see 
civil rights litigation as ordinary cases 
that should be handled in an ordinary 
fashion. To the contrary, often they take 
umbrage over the very fact that a lawsuit 
is filed. A common litigation tactic of
defendant's counsel is to fight 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 rights litigation as well 
as the overwhelming inequality of re­
sources between plaintiffs and defendants. 
City, county, and United States Attorneys, 
attorneys general, and aaency counsel, as 
well as the investigative and support

4 See ojd cite supra n.3, at 322-23.



9

staff of governmental agencies, are pitted 
against one or a handful of, at best, 
middle income plaintiffs and the few 
attorneys will inn to take on such odds. 
The fact of the matter is that local and 
state governments are well equipped to 
protect their rights.

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 litigation tactics of 
oovernment 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 
apoloav to plaintiffs and a reasonable 
monetary settlement. Instead it was 
fouaht 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 
government's right 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 litigation tactics.

Even in cases where the defense has 
been reasonable, the nature of civil 
rights claims often results in extended 
litigation. Facts are often difficult 
to gather; for example, even the identity 
of the appropriate defendants may be 
unknown or difficult to ascertain, see, 
e .g ., Johnson v. Click, 481 F.2d 1028 (2d 
Cir.), cert. denied sub nom. Em­
ployee-Officer 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 underlyincj the suit and 
to the plaintiffs themselves is controlled 
by the defendants. See, e,g., Ruiz v. 
Estelle, 550 F.2d 238, 239 (5th Cir. 1977) 
("The record discloses that in response to 
their participation in this 1itioation, 
these inmates have been subjected . . .  to 
threats, intimid ation, coercion, punish­
ment, and discrimination, all in the face 
of protective orders. . . .") . Moreover, 
uncertainties in the law, particularly
reqardinq the liability of qovernment 

5
aoencies and personnel actinq in their

6
official capacities, may lead to multiple

- 1 1 -

See Monell v. Dept of Social Services, 
436 U.S. 658 (1978); Brandon v. Holt,
II.S. ___ 83 L. Ed . 2d 878 ( 1985).
See, e.o., Pulliam v. Allen, U.S.
____ , 80 L.Ed.2d 565 ( 1984); Butz v.
Economou, 438 U.S. 478 (1978); Pierson v. 
Ray, 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, difficult 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 m
Tennessee v. Garner, 471 U.S. ____, 85
L.Ed.2.d 1 (1985), 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 
II. S. 95 ( 1983).

Congress was aware of these doctrines 
and their effect on the economic viability 
of civil rights litigation. Accordingly, 
it observed that

While 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 
public officials, preclude or 
severely limit the damage 
remedy. Consequently, awarding 
counsel fees to prevailina 
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 
. Stricklandv t 420 U.S 308 (1975);



14

Scheuer v. Rhodes, 416 U.S. 232 (1974);
and Pierson v. Ray, 386 U.S. 547 ( 1967))

8
(footnote omitted; emphasis added).

But consider the result of a decision 
ignoring the implications of this legisla­
tive history and imposing a rule making 
fees proportional to the amount in 
damages. Inevitably, civil actions to 
redress certain types of constitutional 
violations will not be brought solely 
because they are unlikely to generate 
damage awards large enough in support a 
proportional fee award "adeauate to 
attract competent counsel." S. Rep. No. 
94-1 01 1 , 94th Cong., 2d Sess., at 8 (June 
26, 1976); H.R. Rep. No. 94-1558 at 9. Mot 
only will Conaress's clearly expressed 
purpose be subverted, but also the

The report coes on to state that in a 
third class of cases, those in which "only 
injunctive relief is sought . . . pre­
vailing plaintiffs should ordinarily 
recover their counsel fees." Id.



15

hope that damage suits can be a viable 
means to deter fourth amendment viola­
tions, see Bivens v. Six Unknown Agents, 
403 U.S. 388> 411 (1971) (Burner, C.J.,
dissenting), will be frustrated; the only- 
persons with a meaningful remedy will be 
criminal defendants.

The reality is plain. The Bill of 
Fights is not self-executing; 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 
difficult and time-consuming cases in the 
expectation of a one-third fee from a 
833,000 judgment is not only belied by the 
facts of this case —  there were no local 
attorneys willing to take it —  but can 
only be described as a fantasy. It 
certainly has no relation to the real



16

world of civil rights practice as the
Legal Defense Fund and its cooperating

9
attorneys experience it every day, or as 
Congress viewed it when it considered and 
passed what is now § 1988.

4. The arguments of the petitioner 
and its amici, particularly those of the 
United States, are totally contrary to 
congressional intent and the decision of 
this Court in Hensley v. Eckerhart, 461 
U.S. 424 (1983). The qovernment advances 
a number of arquments that it now states 
would limit the proportionality rule to 
those cases where the only relief sought

The Equal Employment Opportunity Com­
mission has an entirely different view 
than that of the Solicitor General 
concerning the impact of a proportionality 
rule on the private bar and the enforce­
ment of the civil rights acts. Indeed, it 
urged that the United States support the 
position of respondents in this case. Its 
memorandum to the Solicitor General was 
printed in full in the Daily Labor Report 
of January 9, 1986 (BNA), at pp. E-1 to 
E-5. For the convenience of the Court, we 
have reproduced the memorandum on the 
appendix to this Brief.



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 
be so limited in the face of similarly 
worded and intentioned statutes. Bee New 
York Gaslight Club v. Carey, 447 U.S. 54, 
70-71 n. 9 (1980). Thus, in individual 
Title VII actions, defendants will soon 
assert that fees should be limited to a 
proportion of the backpay recovery. Such 
a rule would, of course, be devastating to 
Title VII. Even for a case involving an 
upper level job, a recovery of backpay for 
a person denied a promotion is unlikely to 
exceed 820,000. Particularly when the 
defendant is a Government employer (and we 
speak from 14 vears of experience in 
1 it inatino Title VII 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 CTualif ication that a rule of
proportionality would have the immediate
and wholly predictable effect of driving
from practice those attorneys who are
responsible for providing representation
to civil rights plaintiffs in the vast
majority of civil rights and Title VII
1 it iaat ion — single practitioners and

10
attorneys from small firms.

II.
A PROPORTIONALITY RULE IS 
CONTRARY TO CLEAR CONGRESSIONAL 
INTENT

The respondents' brief sets out fully 
and interprets correctly the legislative 
history of the 1976 Fees Act. In addi­
tion, we wish to bring to the Court's

See Chambers and Goldstein, "Title VII at 
Twenty: The Continuing Challenge," 1 The 
Labor Lawyer 235, 255-58 (1985).



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 Congress, Indeed, so 
far they have been unable even to get a 
bill out of subcommittee despite five 
years of effort.

At least as far back as 1981, an 
effort was begun to convince Congress to 
amend drastically § 1988 and other fee 
acts as they affect government defendants. 
Many of the arguments made here —  the 
alleged burdens on the courts and on local 
governments, the purported multiplicity of 
frivolous law suits, the unidentified 
attorneys getting rich by "windfalls" 
-- were made to Congress. See Municipal 
Liability Under 42 U.S.C. $ 1983: Hearings
Before the Subcommittee on the Constitu-



tion of the Senate Judiciary Committee,
97th Cong., 1st Sess. (1981), pp. 147-52 
and 288-91 (Statement of National Insti­
tute of Municipal Law Officers); 524-558 
(Statement of National Association of 
Attorneys General). Indeed, it was 
specifically recommended that the amount 
of fees be " incorporat [ed] ... into the 
amount being sought 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 
latter instance the judgment 
will be of little impact or 
interest beyond the parties 
directly 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 Pees Awards Act of 1976: 
A Report to Congress," by the National 
Association of Attorneys General. See The 
Legal Fee Equity Act; Hearing Before the 
Subcommittee 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 
specifically to prevent fees that were 
allegedly disproportionate to monetary 
awards. Given as an example of a case in 
which "the amount of fees awarded was 
grossly 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 Legal 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 
§ 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 $100,000 is awarded in attorneys' 
fees for a $30,000 judgment." Id. at
124-125



23

Again, the effort to amend the fees 
acts got nowhere and the bill died in 
subcommittee. The Legal Pee 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 
persistent attempts by a consortium 
representing all levels of government in 
this country, to amend § 1988 to incor­
porate the very rule urged by petitioners 
and their amici. As recently noted in
Vasguez 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 Bd. of Regents, 457 U.S. 496



24

( 1982); see also Bob Jones University v. 
United States, 461 U.S. 574, 599-602
(1983). In light of the totality of its 
legislative history, the Fees Act cannot 
reasonably be read to mean that fees are 
to be limited to a percentage 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 Memorandum 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 
respondents Rivera et al_. (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 recovered in damages for violations 
of constitutional and civil rights is less 
than the fees requested.1 Resolution of 
this issue will affect substantially 
attorney's fee awards under Title VII of 
the Civil Rights Act of 1964, 42 U.S.C. 
2000e et_ seq. Section 1988 was expressly 
modeled on Title VII's fee provision, 42

As discussed infra, this issue was not 
expressly raised in the petition for 
certiorari. However, subsequent to the 
petition, Justice Rehnguist issued an 
opinion explaining his grant of a stay and 
indicating that the propriety of a fee 
award which is disproportionate to the 
amount of monetary relief is the central 
issue in the case. City of Riverside v. 
Rivera, 54 U.S.L.W. 3143 (Rehnquist, 
Circuit Justice) (on application for stay) 
(Sept. 10, 1985).



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 
equitable relief, monetary recovery is 
limited to amounts owed for back pay. 
Section 706(g), 42 U.S.C. 2000e-5(g).2
Accordingly, the monetary recovery in an 
individual Title VII case may be relative­
ly meager. Petitioners contend, and 
Justice Rehnguist's opinion on the stay 
application suggests he may agree, that an 
award of fees significantly larger than

2 The courts have held that compensatory and 
punitive damages are not available under 
Title VII. See Patzer v. Bd. of Regents 
of Univ. of Wise., 76>3 F.2dl 851 , 854 n. 2 
(7th CirT 1985)'; Irby v. Sullivan, 737 
F.2d 1419, 1423 (5th Cir. 1984) ; Walker v. 
Ford Motor Co., 684 F.2d 1355, 1363-64 
(11th Cir. T W ? ) , 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 
attorney [s] general," complement the 
Commission's enforcement efforts. See 
Christ iansburg Garment Co. v. Equal 
Employment Opportunity Commission, 434 
U.S. 412, 416-17 (1978), quoting, Newman
v Piggie Park Enterprises, 390 U.S. 400,



5a

402 ( 1968 ). They are also inconsistent 
with the Equal Employment Opportunity 
Commission's recently stated policy that 
nothing less than "prompt, comprehensive 
and complete relief for all individuals 
directly affected by [employment discri­
mination]” is satisfactory. (See EEOC 
Statement 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

. . . 4force of Riverside, California. The 
Riveras and their guests, who were all of 
Mexican descent, claimed that the warrant­
less break-in of their house, accompanied 
by massive amounts of tear gas, verbal 
abuse and, in some instances, severe 
physical abuse, violated their First, 
Fourth, Fifth and Fourteenth Amendment

3

We base our statement on the opinions 
attached to the petition for certiorari, 
the complaint, and the pretrial order 
filed in district court. We have not 
reviewed the rest of the record in this 
case.
Five persons, all plaintiffs herein, were 
arrested. Charges against one, Santos 
Rivera, were dropped by the police 
department prior to the filing of a 
complaint. Charges against the other four 
were dismissed by the municipal court upon 
an explicit finding of no probable cause.



7a

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 ground that they merely had 
been present at the arrest scene and were 
not personally responsible for the 
constitutional 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 $245,456.25 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 
$1988. The court based its decision on

Although 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 
police to obey the law was superfluous. 
(Resp. Opp. at 3 n. 3). The district 
court, however, indicated that had such an 
"obey the law" injunction been sought, it 
would have been granted based on the 
severity of the constitutional violations 
by some of the officers. (See Opp. Cert. 
App. A—1 - A-2).



9a

findings that, inter alia, the "action 
presented complex issues of law in a case 
involving eight individual plaintiffs, 
eleven individual defendants and a 
municipal defendant" (Pet. App. 6-2); 
"[g]iven the nature of this lawsuit, many 
attorneys . . . would have been reluctant 
to institute 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 
jury 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. 
Eckerhart, 461 U.S. 424 ( 1983). (Pet. 
App. 4-1).

After 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)



1 1a

the dignified restraint which the plain­
tiffs exercised in describing their 
injuries to the jury." {Id. at 2-5).^
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 
misconduct?" "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).



1 2a

claims on which plaintiffs did not prevail 
were closely related to the claims on 
which they did prevail” and "cannot 
reasonably be separated. . . (Id. at 
2-6).^ The court found that the amount of 
time expended by counsel "reflected sound 
legal judgment" and was reasonable because 
" [c] ounsel for plaintiffs achieved 
excellent results . . . ." (Id. 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 Chicanos 
community in the area where the 
incident occurred. The amount of 
time expended 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, "[u]nder the circum­
stances of this case, it was reasonable 
for plaintiffs initially to name thirty- 
one individual defendants." (Pet. App. 
2-4).



13a

serve the public interest as well as 
the interests of plaintiffs in the 
vindication of their constitutional 
rights.

(Id. at 2-8 - 2-9).
The court of appeals affirmed, 

finding that the district court had 
correctly 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 
Hensley1 s precepts by focusing on "the 
degree 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 attorney's fees . . . ." (Id. at 1-8 
-1-9).

On August 9, 1985, defendants filed a 
petition for a writ of certiorari, 
presenting the question "[w]hat are the 
proper standards 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, discussing solely the "significant 
question [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 
damages. . . ." 54 U.S.L.W. at 3143.8 In

The petition only obliquely refers to the 
district court's decision not to reduce 
the fees to account for unsuccessful 
claims. See, e.q., Pet. at 35, 54.
Justice 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 monetary judgment obtained and the

Justice Rehnquist contrasted DiFilippo v. 
Morizio, 759 F.2d 231 (2d Cir. 1985), and 
Ramos v. Lamm, 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“ T981), 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), 
which Reid 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 
alone, is a consideration that might 
properly 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 opposition 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 reduction of the attorney's fees 
award for counsel time otherwise reason­
ably expended on successful claims. This

11

is not to say, however, that the amount of
monetary relief is irrelevant. The
Supreme Court held in Hensley V .

Eckerhart , 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

obtained." The amount of relief awarded 
is one consideration in determining 
plaintiff's level of success. However, 
the damage 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 
reasonably expected if plaintiff were 
fully successful. This approach is 
consistent with the intent and purpose of 
the fee-shifting statute, the standards 
adopted in Hensley, 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
prises , 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



2 1a

at 4 2 0, quoting, 110 Cong. Rec. 12724 
(1964) (remarks of Sen. Humphrey). Accord, 
New York Gaslight Club v. Carey, 447 U.S.

Si,,.

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 
compliance 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 
enforcement and fee awards have proved an 
essential remedy if private citizens are 
to have a meaningful opportunity to 
vindicate . . . important Congressional 
policies"); H.R. Rep. No. 94-1558 (1976) 
at 1 ("House Report") ("effective enforce-



22a -

went of Federal civil rights depends 
largely on the efforts of private citi­
zens" ).

The standard suggested by Justice 
Rehnquist —  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 defeat the purpose of the fee-shif­
ting statutes 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 
represent individual claimants who cannot 
finance their own litigation.

The legislative history of §1988 and 
other fee provisions demonstrate that the 
level of monetary recovery should not, of 
itself, dictate 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
gation . . . 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. 
Hathaway in support of bill which became 
§1988) ("In the typical case . . . the 
citizen 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 plaintiffs in such litigation is 
particularly important and necessary if 
Federal civil and constitutional rights
are to be adequately protected." House 

1 2Report at 9.

T5 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.2d 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 assessing fees previously established 
by the Supreme Court. In Hensley v. 
Eckerhart, the Court clarified the means 
by which "adequate” fees are to be 
determined? initially, the "number of 
hours reasonably expended on the litiga­
tion [is] multiplied by a reasonable 
hourly rate." 461 U.S. at 433. This 
figure, sometimes called the "lodestar" 
(e.g. Copeland v. Marshall, 641 F. 2d 880, 
890-91 (D.C. cir. 1980) (en banc)), is 
then subject to further adjustment based,

64 F.R.D. 680 (N.D. Ca. 1974)? Davis v. 
County of Los Angeles, 8 E.P.d I if94'4'4 
(C.D. Ca. 1974); and Swann v. Charlotte- 
Mecklenburg Bd. of E<j . , 66 F.R.D. 683 
(W.D.N.C. 1975). In none of those cases 
were large amounts of monetary damages 
awarded, if any, and, in the Stanford 
Daily case, no injunctive re Tie? 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 litigation . . ." 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 because the amount of damages at 
issue was low.

Furthermore, as noted above, the 
Court directed that in setting fees the 
primary consideration should be on whether 
the "degree of success" justified the 
hours expended 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 
use of terms such as '’degree of success" 
(461 U.S. at 436 ), "extent of success" 
(id. 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 
"mathematical 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 reasonable 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.
___, 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 reason —  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 

terms. ̂ 3 See Jaguette v. Black Hawk
County, Iowa, 710 F.2d 455, 460 (8th Cir.

, reflects,
13 Justice Rehqgtai%%vMpqij&h(»tf etPBlritf a 

mathematical formula to cases involving
relief. 54 U.S.L.W. at 3144. However,

obti&ft ¥ l $ m ?Title VII cases this distinction makes
wh iM l ftn§ftn£B%* < & Q n c M & & £ rduals may have identical claims alleging
ter^s<M roina$4gn e™&PYWa!biEa

to promote them to_;lobs~p'ayiTtg'"$̂ '7‘&0,0 'moTe
Coufff? f3$/°4#Oi*8feftcfeiBa.y--- and an' Injunction ordering his promotion.

The.other obtains $10,000 in back pay but
13 s « S h i» u 4 f t ± « n g $ 4 5 s  b ^ B a u s ^ b e f o r e

n f e f t & l n . t e S' higher dm&P9iriWfe«■■ i
<$t? M  QA &Bh§P tornw-’ ft fees

rm  i<±fte 4^herjfbw4tQ1no
a#sor, rfWWtfeWM-’aftd fcfc#tsrjffc*

•m m **-.tecgu.se .̂ fn in j. U n t a £{>$d k .,-,%u b jit

cfe9fta»S Satifen#^PF'3 5 ^ © ^ * ^ f; jFPl rf#?
tteiPW q»b s 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
loqical basis for concluding that the------:— 8 -■.... -  ». - • f..... - ---



30a

1983) ("marketplace factors are often
absent from civil rights litigation,"
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 authority for excluding under the
rubric of "billing judgment" compensation
for necessary hours expended on a suc-

1 4cessful civil rights claim. 14

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 pertinent recent 
court of appeals' decisions reveal near 
uniform agreement that the size of the 
damage 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 Aurora, 766 F. 2d 1464, 1467 ( 10th 
Cir. 1985); DiFilippo v. Morizio, 759 F .2d 
231, 235-36 (2d Cir. 1985); Lynch v. City 
of Milwaukee, 747 F.2d 423, 428-29 & n. 5 
(7th Cir. 1984 ); Wojtkowski v. Cade, 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). 
Petitioner's real quarrel is with this 
determination, as their petition reflects.



32a

University of Puerto Rico, 600 P. 2d 1, 2 
(1st Cir. 1979)? Burt v. Abel, 585 F.2d 
613, 618 (4th Cir. 1978); See also Bonner 
v. Coughlin, 657 F.2d 931 , 934 (7th Cir. 
1981).15

Justice Rehnquist cites two cases 
— PiFilippo v. Morizio and Ramos v. Lamm, 
713 F.2d 546 ( 10th Cir. i$g~5j —  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 ground that only declaratory 
and injunctive relief had been requested. 
Nephew v. City of Aurora, 766 F. 2d at 
1465-66.

In Cunningham v. City of McKeesport, 
753 F.2d 262, 268-69 (3rd cir. 19$5')', pe't. 
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 
regarding 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

Courts which have analyzed the issue 
in detail after Hensley have recognized 
that the amount of damages is appropriate­
ly considered 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; Jaquette 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 
whether 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 obtained . . . ." Jaquette, 710 
F.2d at 461. Where the comparison reveals 
that "plaintiffs won an unambiguous

rehearing £n banc



34a

victory . . . their attorneys should 
recover a fully compensatory fee." 
DiFilippo, 759 F.2d at 235.

4. The district 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 police 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).



35a

Accordingly, the court found that respon­
dents had achieved "excellent results." 
(Pet. 2-7).

The district court can be criticized 
for not making more detailed findings and 
for relying solely on its own experience 
in determining that the results were 
better 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 
determining the extent of success, and 
petitioners 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 
discussing the legal standards to be



36a

applied to requests for attorney's fees 
greater than the amount of the monetary 
judgment.



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177