Attorney's Fees

Author:George Rutherglen

Section 706(k) authorizes the award of attorney's fees to the prevailing party in Title VII cases.[582] In Christiansburg Garment Co. v. EEOC,[583]

the Supreme Court interpreted this section to require the award of attorney's fees to prevailing plaintiffs "'unless special circumstances would render such an award unjust,"'[584] but to allow the award of attorney's fees to prevailing defendants only if "'the action brought is found to be unreasonable, frivolous, meritless or vexatious.'"'[585] The Court reasoned that fee awards to prevailing plaintiffs further the statutory purpose of eliminating discrimination, whereas fee awards to prevailing defendants further only the statutory purpose of discouraging meritless litigation.'[586] These principles apply to awards of attorney's fees against the federal government and the states, despite the doctrine of sovereign immunity and the Eleventh Amendment, both of which have been overridden by explicit congressional enactment.[587]

Provisions for the award of attorney's fees like section 706(k) are found in other federal civil rights laws[588] and have received a similar interpretation.[589] The most important condition for the award of attorney's fees under these laws is the need to be a prevailing party. In several cases, the Supreme Court has denied an award of attorney's fees altogether when the plaintiff has obtained only nominal judicial relief or a settlement short of a judicially enforceable judgment. In Hewitt v. Helms,'[590] the plaintiffs obtained an opinion that state prison officials had acted in violation of the Constitution but were immune from liability for damages, the only relief the plaintiffs sought. Despite the fact that the prison officials revised their regulations to conform to the opinion, the plaintiffs were not prevailing parties entitled to an award of attorney's fees.[591] In Farrar v. Hobby,[592] the plaintiff obtained nominal damages of one dollar and so was a prevailing plaintiff, but because he had failed to establish a claim to any other form of relief, he was not entitled to an award of attorney's fees. This decision is consistent with an earlier decision, Texas State Teachers Association v. Garland Independent School District,[593] which had allowed an award of attorney's fees when the plaintiff succeeded on "'any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit.'[594] The Court cautioned, however, that a "material alteration of the legal relationship of the parties" was necessary and that "purely technical or de minimis" success was inadequate.[595]

Carrying this reasoning to its logical conclusion, the Court eventually held that a prevailing party must obtain a judgment on the merits or a judicially approved consent decree in order to recover attorney's fees. In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources,[596]" a case of housing discrimination, the plaintiffs had obtained the relief they sought from the state legislature, but without the entry of a judgment in their favor from the court. The Supreme Court held that serving as a "catalyst" for such relief was insufficient, offering a general interpretation of all the federal statutes authorizing the recovery of attorney's fees. As a matter of statutory language, the authorization of fee awards only to a "prevailing party" requires entry of a judgment or consent decree in that party's favor.[597] As a matter of policy, where only injunctive and declaratory relief is sought, as in this case, the defendants might be deterred from making desirable changes if they could be assessed attorney's fees for doing so, even in the absence of a judicially entered judgment.[598]

The preceding cases all concerned claims under statutes like Title VII, authorizing an award of attorney's fees only to "the prevailing party." The Civil Rights Act of 1991 might alter the interpretation of this phrase in a provision addressed to "mixed-motive" cases, in which the plaintiff proves discrimination but the defendant proves that the plaintiff would have been rejected or fired for entirely legitimate reasons. This provision, discussed earlier,[599] explicitly authorizes an award of attorney's fees upon a finding that Title VII has been violated."[600] An award of attorney's fees might therefore be allowed more liberally under Title VII than under other statutes. However, this provision does not amend the section of the statute that generally authorizes the award of attorney's fees to the "prevailing party," which is the phrase interpreted in decisions like Buckhannon. So far, the lower courts are divided on this question[601] and it awaits resolution by the Supreme Court.

Qualifications and Exceptions

The general rule of Christiansburg Garment Co. v. EEOC [602] regarding the award of attorneys' fees has been qualified by several...

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