The Lawletter Vol 39 No 11
"Occupy Wall Street" protestors brought an action under 42 U.S.C. § 1983 against the City of Austin, Texas, challenging on First Amendment and Due Process grounds the City's policy of issuing criminal trespass notices to protestors on city property. They sought nominal damages and declaratory and injunctive relief. After a bench trial, the U.S. District Court for the Western District of Texas granted declaratory and injunctive relief to the protestors but denied their motion for attorney's fees and expenses under 42 U.S.C. § 1988. The protestors appealed the attorney's fees ruling to the Fifth Circuit.
The Fifth Circuit reversed and remanded for entry of an order awarding the protestors fees in an appropriate amount. Sanchez v. City of Austin, No. 13-50916, 2014 WL 7234728 (5th Cir. Dec. 18, 2014). The error leading to the reversal was the district court's having used the allegedly limited nature and scope of the injunctive relief obtained by protestors and the allegedly limited injury to their rights as relevant factors when determining whether "special circumstances" warranted denial of § 1988 attorney's fees, even though the protestors had been prevailing parties.
The discretion afforded district courts under § 1988 to deny attorney's fees to prevailing plaintiffs is exceedingly narrow. (The standard for prevailing defendants is different.) The touchstone of the prevailing-party analysis for an award of attorney's fees under § 1988 must be the material alteration of the legal relationship of the parties in a manner that Congress sought to promote in that statute (the Civil Rights Attorneys' Fee Award Act). The prevailing-party inquiry does not turn on the magnitude of the relief obtained; a plaintiff is the "prevailing party," as the basis for attorney's fees under § 1988, when actual relief on the merits of the plaintiff's claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.
An injunction or declaratory judgment for the plaintiffs, like a damages award, will usually satisfy the test for prevailing-party status as the basis for an attorney's fees award under § 1988. In Sanchez, the protestors were prevailing parties, although they did not obtain the nominal damages they had sought, where they obtained the declaratory and injunctive relief they had sought. The district court had entered a final judgment in the protestors' favor, declaring the relevant parts of the City's criminal trespass policy facially unconstitutional, ordering a permanent injunction against its enforcement, and awarding all costs to the protestors.
Under § 1988, a prevailing plaintiff should ordinarily recover attorney's fees unless "special circumstances" would render such an award unjust. In fact, in the absence of such special circumstances, a district court not merely "may," but must, award attorney's fees to a prevailing plaintiff. Because Congress believed that the incentive of awarding attorney's fees was critical to the enforcement of the civil rights laws, § 1988 requires an extremely strong showing of special circumstances to justify a denial of attorney's fees to a plaintiff as the prevailing party. The error in the lower court's analysis in Sanchez was in its use of the allegedly limited nature and scope of the injunctive relief obtained by the protestors, and the ostensibly limited injury to their rights, as relevant factors in deciding that special circumstances warranted denial of prevailing-party attorney's fees for the protestors. The district court had found "special circumstances" in the City's contention, which was disputed by the protestors, to the effect that the challenged policies had been repealed or amended by the time the lower court reached its decision granting relief.
When the nature and scope of the injunctive relief that prevailing plaintiffs win is, in fact, limited, or the injury to their rights is minimal, these are relevant factors when determining the reasonableness of a request for attorney's fees under § 1988 as a threshold matter. However, the court in Sanchez ruled that those factors play no role in the next stage of the analysis—whether special circumstances would make an award of attorney's fees unjust.
Those cases that have recognized special circumstances sufficient to deny an award of attorney's fees to a prevailing plaintiff demonstrate how such special circumstances arise only in unusual situations. For example, some cases involve situations in which the plaintiff filed under § 1983 to recover what was essentially a tort claim for private monetary damages and the lawsuits did not require injunctive relief or confer significant civil rights to the public. See, e.g., Zarcone v. Perry, 581 F.2d 1039, 1042-45 (2d Cir. 1978) (upholding denial of fees award in damages action for insults suffered from state judge), cert. denied, 439 U.S. 1072 (1979).
In several other cases, courts have denied an award of attorney's fees because even though the plaintiffs received the benefits desired from their litigation, their efforts did not contribute to achieving those results. See Bush v. Bays, 463 F. Supp. 59, 66-67 (E.D. Va. 1978) (no fees award to plaintiffs whose lawsuit was not a contributing factor in reforming challenged food stamp procedure). The fact that the plaintiffs' lawsuit did not contribute to achieving the desired results from the litigation was also cited as a factor in Aho v. Clark, 608 F.2d 365, 367-68 (9th Cir. 1979). In that case, the Ninth Circuit upheld the denial of an attorney's fees award because in settling the case, the parties had not contemplated a subsequent award of fees and because the plaintiffs' litigation was not instrumental in bringing the defendants' challenged school breakfast program into compliance with federal standards.