XXII. Attorneys' Fees

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

XXII. ATTORNEYS' FEES

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988(b), authorizes courts, in their discretion, to award reasonable attorneys' fees to the prevailing party in a § 1983 action. Section 1988 fees are an "integral part" of § 1983 remedies.⁴⁵⁴ The Supreme Court has admonished the lower federal courts that a "request for [§ 1988(b)] attorney's fees should not result in a second major litigation."⁴⁵⁵ In Fox v. Vice,⁴⁵⁶ the Supreme Court said that federal "trial courts need not, and indeed should not, become green-eyeshade accountants" and that the "essential goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection." Nevertheless, § 1988(b) fee disputes often do result in a "second major litigation."⁴⁵⁷ Fee litigation "can turn a simple civil case into two or even more cases—the case on the merits, the case for fees, the case for fees on appeal, the case for fees for proving fees, and so on ad infinitum or at least ad nauseam."⁴⁵⁸

[The goal of avoiding a second major litigation] has proved a somewhat pious and forlorn hope. In view of the complexities the Supreme Court and the lower courts have grafted onto the fee calculation process, federal courts are today enmeshed in an inordinately time consuming and ultimately futile search for a fee that reflects market forces in the absence of a relevant market.⁴⁵⁹

The decisional law interpreting and applying § 1988(b) and other federal civil rights fee-shifting statutes is nothing short of voluminous.⁴⁶⁰

A. Prevailing Parties

Prevailing Plaintiff Presumptively Entitled to Fees: The courts interpret the § 1988 fee-shifting statute to mean that attorneys' fees should be awarded to a prevailing plaintiff almost as a matter of course. Fees should be denied to a prevailing plaintiff only when "special circumstances" would make a fee award unjust. The fiscal impact of a fee award upon a municipality is not a special circumstance.⁴⁶¹ The defendant's good faith is not a special circumstance justifying denial of fees to a prevailing plaintiff.⁴⁶² Nor is the fact that the fees will ultimately be paid by taxpayers a special circumstance justifying either a denial or reduction of fees.⁴⁶³ However, some courts consider a plaintiff's grossly inflated fee application a special circumstance justifying the denial of fees.⁴⁶⁴

Prevailing Defendants Presumptively Not Entitled to Fees: Unlike prevailing plaintiffs, prevailing § 1983 defendants are not presumptively entitled to fees. Prevailing defendants are entitled to attorneys' fees only when the plaintiff's action was "frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so."⁴⁶⁵

Success or Any Significant Issue: The plaintiff will be considered a prevailing party when he succeeds on "any significant issue" that achieves some of the benefit sought in bringing suit.⁴⁶⁶ To be a prevailing party, the plaintiff must obtain some judicial relief as a result of the litigation; the mere fact that the court expressed the view that the plaintiff's constitutional rights were violated does not qualify the plaintiff as a prevailing party.⁴⁶⁷ The mere fact that the plaintiff prevailed on a procedural issue during the course of the litigation, such as by obtaining an appellate decision granting a new trial, does not qualify the plaintiff as a prevailing party.⁴⁶⁸ Although obtaining a permanent injunction will render the plaintiff a prevailing party,⁴⁶⁹ a plaintiff who obtains a preliminary injunction is not a prevailing party if the defendant ultimately prevails on the merits.⁴⁷⁰ In those circumstances, while the plaintiff may have won an important battle, the defendant won the war. "[A] plaintiff 'prevails when actual relief on the merits of [her] claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.'"⁴⁷¹

Normal Damages: In Farrar v. Hobby,⁴⁷² the Supreme Court held that a § 1983 plaintiff who recovers only nominal damages is nevertheless a prevailing party eligible to recover attorneys' fees under § 1988(b), but usually a reasonable fee in these circumstances is either no fees or very low fees. Justice Sandra Day O'Connor's concurring opinion in Farrar urged courts to consider (1) the difference between the damages sought and the damages recovered, (2) the significance of the legal issues on which plaintiff claims to have prevailed, and (3) the public purpose served by the litigation. The lower federal courts have generally relied upon the O'Connor concurrence in evaluating the fee issue in nominal damages cases.⁴⁷³

Prevailing on Pendent Claim: A plaintiff who asserts a § 1983 claim that is not insubstantial and obtains relief on a "pendent" (i.e., "supplemental") state-law claim is a prevailing party eligible for fees under § 1988, even though the § 1983 claim is not decided on the merits.⁴⁷⁴ The plaintiff, however, is not entitled to fees if the § 1983 claim is insubstantial.⁴⁷⁵ Nor is the plaintiff entitled to § 1988 fees if he prevails on the pendent state-law claim but the § 1983 claim is decided against him.⁴⁷⁶

Success Need Not Be Complete: The plaintiff may be a prevailing party even though she did not prevail on all of her claims. In Hensley v. Eckerhart,⁴⁷⁷ the Supreme Court held that when plaintiff prevails on some but not all claims arising out of common facts, the results obtained determine whether the fees should be reduced because of lack of success on some claims. The Court said that in determining the amount of the fee award, "the most critical factor is the degree of success obtained."⁴⁷⁸ The Court in Hensley also ruled that when the plaintiff prevails on some but not all claims that are not interrelated, the plaintiff should be awarded fees only for the successful claims.⁴⁷⁹ In these circumstances, the separate unsuccessful claims are treated like a separate unsuccessful action. However, when the successful and unsuccessful claims are interrelated, the district court should focus on the overall results achieved. If the plaintiff achieved "excellent results," he should recover a full compensatory fee award. If the plaintiff achieved "only partial or limited success," the district court should consider whether the lodestar fee amount (reasonable hours multiplied by reasonable rates) is excessive. The district court should award only that amount of fees that is "reasonable in relation to the results obtained."⁴⁸⁰

Plaintiff Must Obtain Some Judicial Relief: In Buckhannon Board and Care Home v. West Virginia Department of Health and Human Services,⁴⁸¹ the Supreme Court held that the fact that the lawsuit was a catalyst in causing the defendant to alter its conduct to the plaintiff does not qualify the plaintiff as a prevailing party. The Court said that to be a prevailing party, the plaintiff must secure a favorable judgment on the merits or a court-ordered consent decree. The decision in Buckhannon overturned the catalyst doctrine that had been adopted by 11 circuits and rejected only by the Fourth Circuit. The Court in Buckhannon stated that only "enforceable judgments on the merits and court-ordered consent decrees create the 'material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees."⁴⁸² Dictum in Buckhannon states that private settlements not embodied in a judicial decree will not qualify the plaintiff as a prevailing party because "[p]rivate settlements do not entail the judicial approval and oversight involved in consent decrees."⁴⁸³

The decision in Buckhannon has generated a great deal of lower-court litigation, raising such issues as whether a preliminary injunction or "so ordered" settlement qualifies the plaintiff as a prevailing party. A "stipulation and order of discontinuance," combined with court retention of jurisdiction over the settlement for enforcement purposes, may qualify the plaintiff as a prevailing party.⁴⁸⁴

Pro Se Plaintiff: A pro se plaintiff is not eligible to recover attorneys' fees, even if the plaintiff is a lawyer.⁴⁸⁵ Thus, only a prevailing...