Section 1983 Litigation/Attorneys’ Fees

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Section 1983 Litigation
Table of Contents
Introduction to § 1983 Litigation
The Statute
Historical Background
Nature of § 1983 Litigation
Right to Trial by Jury
Jury Instructions
Constitutional Claims Against Federal Officials: The Bivens Doctrine
Section 1983 Does Not Encompass Claims Against Federal Officials
The Bivens Claim for Relief
Law Governing Bivens Claims
Elements of Claim, Functional Role, Pleading, and Jurisdiction
Elements of the § 1983 Claim
Functional Role of § 1983
Pleading § 1983 Claims
Federal Court Jurisdiction
State Court Jurisdiction
Section 1983 Plaintiffs
Persons Entitled to Bring Suit Under § 1983
Constitutional Rights Enforceable Under § 1983
Due Process Rights: In General
Procedural Due Process
Substantive Due Process Claims
Use of Force by Government Officials: Sources of Constitutional Protection
Arrests and Searches
Malicious Prosecution Claims Under Fourth Amendment
Conditions-of-Confinement Claims Under Eighth Amendment
First Amendment Claims
Equal Protection “Class-of-One” Claims
Enforcement of Federal Statutes Under § 1983
Enforcement of Federal “Rights”
Specific Comprehensive Scheme Demonstrating Congressional Intent to Foreclose § 1983 Remedy
Current Supreme Court Approach
Enforcement of Federal Regulations Under § 1983
Color of State Law and State Action
State and Local Officials
State Action Tests
Section 1983 Defendants
State Defendants
Interplay of “Person” and Eleventh Amendment Issues
Municipal Defendants
State Versus Municipal Policy Maker
Departments, Offices, and Commissions
Capacity of Claim: Individual Versus Official Capacity
Municipal Liability
Fundamental Principles of § 1983 Municipal Liability
Officially Promulgated Policy
Municipal Policy Makers
Custom or Practice
Inadequate Training
Inadequate Hiring
Pleading Municipal Liability Claims
Liability of Supervisors
Relationship Between Individual and Municipal Liability
Los Angeles v. Heller
If Plaintiff Prevails on Personal-Capacity Claim
“Cost Allocation Scheme”
State Liability: The Eleventh Amendment
Relationship Between Suable § 1983 “Person” and Eleventh Amendment Immunity
Eleventh Amendment Protects State Even When Sued by Citizen of Defendant State
State Liability in § 1983 Actions
Personal-Capacity Claims
Municipal Liability; the Hybrid Entity Problem
Eleventh Amendment Waivers
Eleventh Amendment Appeals
Personal-Capacity Claims: Absolute Immunities
Absolute Versus Qualified Immunity: The Functional Approach
Judicial Immunity
Prosecutorial Immunity
Witness Immunity
Legislative Immunity
Personal Liability: Qualified Immunity
Who May Assert Qualified Immunity? Private Party State Actors
Clearly Established Federal Law
Procedural Aspects of Qualified Immunity
Exhaustion of State Remedies
State Judicial Remedies: Parratt-Hudson Doctrine
Preiser, Heck, and Beyond
State Administrative Remedies; PLRA
Notice of Claim
Preclusion Defenses
State Court Judgments
Administrative Res Judicata
Arbitration Decisions
Statute of Limitations
Limitations Period
Relation Back
Survivorship and Wrongful Death
Wrongful Death
Abstention Doctrines
Pullman Abstention; State Certification Procedure
Younger Abstention
Colorado River Abstention
Burford Abstention
Domestic Relations Doctrine
Tax Injunction Act
Monetary Relief
Nominal and Compensatory Damages
Punitive Damages
Release-Dismissal Agreements
Prison Litigation Reform Act
Attorneys’ Fees
Section 1988 Fee Litigation
Prevailing Parties
Computation of Fee Award: Lodestar Adjustment Method
Other Fee Issues
Model Instructions
Model Instruction 1: Section 1983—Elements of Claim—Action Under Color of State Law
Model Instruction 2: Fourth Amendment Excessive Force Claim
Model Instruction 3: Eighth Amendment Prisoner Excessive Force Claim
Model Instruction 4: Fourth Amendment False Arrest Claim
Model Instruction 5: Municipal Liability—General Instruction
Model Instruction 6: Municipal Liability—Inadequate Training or Supervision
Model Instruction 7: Compensatory Damages
Model Instruction 8: Punitive Damages

See generally Awarding Attorneys’ Fees and Managing Fee Litigation (Federal Judicial Center 2d ed. 2005).

Section 1988 Fee Litigation[edit | edit source]

The Civil Rights Attorney’s Fees Awards Act of 1976[1] authorizes courts, in their discretion, to award reasonable attorneys’ fees to the prevailing party in a § 1983 action. Section 1988 fees serve “an important public purpose by making it possible for persons without means to bring suit to vindicate their rights.”[2] Section 1983 fees are thus an “integral part” of § 1983 remedies.[3]

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.”[4] Nevertheless, § 1988(b) fee disputes often do result in a “second major litigation.”[5] 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.”[6] As a federal district judge lamented, 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.[7]

Prevailing Parties[edit | edit source]

Prevailing Plaintiffs Presumptively Entitled to Fees[edit | edit source]

Section 1988(b) authorizes a fee award to a “prevailing party.” “[L]iability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity or on the merits, § 1988 does not authorize a fee award against that defendant.”[8] Whether a party is a prevailing party is a question of law for the court.[9] 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.[10] Fees should be denied to a prevailing plaintiff only when “special circumstances” would make a fee award unjust.[11] The fiscal impact of a fee award upon a municipality,[12] defendant’s good faith,[13] and the fact the fees will ultimately be paid by taxpayers[14] have all been held not to be “special circumstances” justifying either a denial or reduction of fees. However, some decisions have held that a plaintiff’s grossly inflated fee application may be a special circumstance justifying the denial of fees.[15]

Double Standard: Prevailing Defendants Presumptively Not Entitled to Fees[edit | edit source]

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.”[16] Although “attorney’s fees should rarely be awarded against [pro se] § 1983 plaintiffs,” the district court has discretion to do so.[17] In most cases the district court’s failure to give adequate reasons or explanation for awarding fees to a defendant is an abuse of discretion necessitating a remand.[18]

The Supreme Court held that when a § 1983 complaint asserts both frivolous and nonfrivolous claims, the court may award fees to the prevailing defendant, but only for the fees that the defendant would not have incurred but for the frivolous claims.[19] The critical question in computing the defendant’s fees in these circumstances is whether the defendant’s fees “would have been incurred in the absence of the frivolous allegation.”[20]

Plaintiff Must Obtain Some Judicial Relief[edit | edit source]

The plaintiff will be considered a prevailing party when he succeeds on “any significant issue” that achieves some of the benefit the plaintiff sought in bringing suit.[21] 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.[22] 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, also does not qualify the plaintiff as a prevailing party.[23] “[A] plaintiff ‘prevails’ 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.”[24]

In Farrar v. Hobby,[25] 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. In determining whether to award fees to a plaintiff who recovered only nominal damages, Justice O’Connor’s concurring opinion in Farrar urged courts to consider the difference between the damages sought and the damages recovered, the significance of the legal issues on which the plaintiff claims to have prevailed, and the public purpose served by the litigation.[26] The lower federal courts have generally relied on O’Connor’s concurrence in evaluating the fee issue in nominal damages cases.[27]

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.[28] The plaintiff, however, is not entitled to fees if the § 1983 claim is insubstantial,[29] or if the court in fact decides the merits of the plaintiff’s constitutional claim adverse to the plaintiff.[30]

The plaintiff may be a prevailing party even if she did not prevail on all of her claims. In Hensley v. Eckerhart,[31] the Supreme Court held that when the 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 complete success. The Court said that in determining the amount of the fee award, “the most critical factor is the degree of success obtained.”[32] The Court 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.[33] 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,” she 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 the amount of fees that is “reasonable in relation to the results obtained.”[34]

In Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources,[35] the Supreme Court held that the fact that the lawsuit was a catalyst in causing the defendant to alter its conduct in relation to the plaintiff does not qualify the plaintiff as a prevailing party. It ruled that to be a “prevailing party,” the plaintiff must secure a favorable judgment on the merits or a court-ordered consent decree. The Court overturned the catalyst doctrine that had been adopted by eleven Circuits and rejected only by the Fourth Circuit. Under Buckhannon, 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.”[36] Dictum 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.”[37]

Buckhannon involved the federal fee-shifting statutes in the Fair Housing Act and Americans with Disabilities Act. However, the lower federal courts have uniformly applied the decision to other civil rights fee-shifting statutes, including 42 U.S.C. § 1988(b).[38]

Buckhannon has generated a great deal of litigation, raising such issues as whether a preliminary injunction or “so ordered” settlement qualifies the plaintiff as a prevailing party.[39] 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.[40]

A pro se plaintiff is not eligible to recover attorneys’ fees, even if the plaintiff is an attorney.[41] Thus, only a prevailing plaintiff who is represented by counsel is eligible to recover fees.

Computation of Fee Award: Lodestar Adjustment Method[edit | edit source]

Section 1988(b) provides that a court may award a prevailing party “a reasonable attorney’s fee as part of the costs.” Fees awarded under § 1988 are computed under the “lodestar” method of multiplying reasonable hours by reasonable hourly market rates for attorneys in the community with comparable backgrounds and experience.[42] There is a “strong presumption” that the lodestar produces a reasonable fee.[43] The district court may enhance the lodestar for the quality of representation, but only in “rare” and “exceptional” circumstances.[44] The underlying goal of a § 1988(b) fee award is to “attract competent counsel.”[45] The fee applicant must submit “appropriate documentation” to establish entitlement to an award.[46]

The Supreme Court stressed that, in determining an attorney’s reasonable hours, trial courts “should not[ ] become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.”[47]

The “fee applicant has the burden of showing by ‘satisfactory evidence —in addition to the attorney’s own affidavits’—that the requested hourly rates are the prevailing market rates.”[48]

At a minimum, a fee applicant must provide some information about the attorneys’ billing practices and hourly rate, the attorneys’ skill and experience (including the number of years that counsel has practiced law), the nature of counsel’s practices as it relates to this kind of litigation, and the prevailing market rates in the relevant community.[49]

The district court may “rely in part on [its] own knowledge of private firm hourly rates in the community.”[50] The district court may also “consider other rates that have been awarded in similar cases in the same district.”[51]

Under the “forum” rule there is a presumption in favor of applying the rates of the forum.[52] To “overcome that presumption, a litigant must persuasively establish that a reasonable client would have selected out-ofdistrict counsel because in doing so would likely produce a substantially better based result.”[53] The fee applicant may satisfy her burden by showing that local counsel was unable or unwilling to take the case, or that in a case requiring special expertise, “that no in-district counsel possessed such expertise.”[54]

Paralegal services that contributed to the attorney’s work product may be compensated at “prevailing market rates” rather than the cost of paralegal services incurred by counsel.[55]

The fee applicant bears the burden of documenting and demonstrating the reasonableness of the hours claimed.[56] The reasonableness of the hours depends in part on counsel’s expertise.[57] “A fee applicant cannot demand a high hourly rate—which is based on his or her experience, reputation, and a presumed familiarity with the applicable law—and then run up an inordinate amount of time researching that same law.”[58]

The district court should exclude hours that are “excessive, redundant, or otherwise unnecessary.”[59] “[T]rial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.”[60] In some circumstances, fees may be awarded for post-judgment monitoring.[61] The fee applicant’s failure to exercise proper billing judgment by failing to exclude hours that are excessive, redundant, or otherwise unnecessary may lead the district court to reduce the fee award.[62]

The Supreme Court has generally disapproved of the use of upward adjustments to the lodestar.[63] In “rare” and “exceptional” cases, an upward adjustment may be made because of the superior quality of representation[64] or for “exceptional success.”[65] Fees may also be adjusted upward to compensate the prevailing party for delay in payment, either by using current market rates rather than historic rates, or by adjusting historic rates to account for inflation.[66] The lodestar may not be enhanced to compensate for the risk of non-success when the plaintiff’s attorney was retained on a contingency basis.[67] Nor should the lodestar be enhanced because of the novelty and complexity of a case because these factors are presumably fully reflected in counsel’s billable hours.[68]

In City of Riverside v. Rivera,[69] the Supreme Court held that the fees awarded need not be proportional to the damages recovered by the plaintiff. The approximately $245,000 in fees awarded the plaintiff substantially exceeded the $33,350 in damages he recovered.[70] “Because damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases . . . to depend on obtaining substantial monetary relief.”[71]

The fees awarded under § 1988 are not limited to the amount of fees recoverable by counsel pursuant to a contingency fee agreement.[72] Conversely, the fees collectable under a contingency agreement may exceed the fees awarded under § 1988.[73]

Fees generally may not be awarded for work performed on administrative proceedings that preceded the § 1983 action , unless those proceedings “contributed directly to the successful outcome in federal court and obviated the need for comparable work in the federal action. . . .”[74] In addition, expert witness expenses are not recoverable as part of the § 1988 fee award in § 1983 actions.[75]

Legal services organizations and other nonprofit organizations are entitled to have fee awards computed on the basis of reasonable market rates rather than on the lower salaries paid to the organization’s attorneys.[76]

Other Fee Issues[edit | edit source]

Eleventh Amendment Immunity[edit | edit source]

When prospective relief is awarded against state officials under the doctrine of Ex parte Young,[77] an award of fees payable out of the state treasury is not barred by the Eleventh Amendment.[78] Further, the Eleventh Amendment does not bar an upward adjustment in the lodestar to compensate for delay in payment.[79]

Offer of Judgment[edit | edit source]

Federal Rule of Civil Procedure 68 provides that “a party defending a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money . . . specified in the offer, with costs then accrued.” If the offeree rejects the offer and “the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after making the offer.” In Marek v. Chesny,[80] the Supreme Court held that the “costs” referred to in Rule 68 encompass § 1988(b) attorneys’ fees. Therefore, even though the plaintiff was the prevailing party, if the plaintiff did not obtain more favorable relief than he had been offered under Rule 68, he may not recover from the defendant any § 1988(b) fees that accrued after the rejected offer of judgment.[81]

The Court in Marek emphasized that if the defendant intends his Rule 68 offer of judgment to cover “costs,” that is, § 1988 attorneys’ fees, the offer must clearly say so. The Court stated:

If an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include as its judgment an additional amount which in its discretion, it determines to be sufficient to cover the costs.[82]

Marek did not address whether a defendant who makes a successful Rule 68 offer is entitled to § 1988 fees that accrued after the date of the offer. The great weight of lower court authority holds that although Rule 68 authorizes an award of post-offer “costs” to the defendant, these costs do not include § 1988 fees to a nonprevailing defendant.[83]

Settlement of Merits and Fees[edit | edit source]

In Evans v. Jeff D.,[84] the Supreme Court held that an offer by a defendant to settle the plaintiff’s claim on the merits and the claim for fees simultaneously is not necessarily unethical. The Court said that a claim for § 1988 fees belongs to the party, not to her attorney,[85] and is considered part of “the arsenal of remedies available to combat violations of civil rights, a goal not invariably inconsistent with conditioning settlement on the merits on a waiver of statutory attorney’s fees.”[86]

Explanation of Fee Determination[edit | edit source]

Finally, “[i]t is essential that the judge provide a reasonably specific explanation for all aspects of a fee determination” in order to allow for meaningful appellate review.[87]

References[edit | edit source]

  1. 42 U.S.C. § 1988(b).
  2. Perdue v. Kenny A., 130 S. Ct. 1662, 1677 (2010). See also Fox v. Vice, 131 S. Ct. 2205, 2213 (2011) (prevailing plaintiff in civil rights cases serves as “‘private attorney general’”) (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)).
  3. Maine v. Thiboutot, 448 U.S. 1, 11 (1980). See also Hudson v. Michigan, 547 U.S. 586, 597 (2006) (“Since some civil-rights violations would yield damages too small to justify the expense of litigation, Congress has authorized attorney’s fees for civil-rights plaintiffs.”).
  4. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Accord Fox, 131 S. Ct. at 2216; Webb v. Cnty. Bd. of Educ., 471 U.S. 234, 244 n.20 (1985); Blum v. Stenson, 465 U.S. 886, 902 n.19 (1984).
  5. Doe v. Ward, 282 F. Supp. 2d 323, 329 n.4 (W.D. Pa. 2003) (principle that fees should not result in major litigation “is one of the emptiest phrases in our jurisprudence” because “fee questions most definitely constitute major litigation”).
  6. Ustrak v. Fairman, 851 F.2d 983, 987 (7th Cir. 1988). See also Divane v. Krull Elec. Co., 319 F.3d 307, 314 (7th Cir. 2003) (ERISA suit).
  7. Sys. Mgmt., Inc. v. Loiselle, 154 F. Supp. 2d 195, 207 (D. Mass. 2001) (Young, C.J.).
  8. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (citation omitted).
  9. Jenkins v. Missouri, 127 F.3d 709, 713–14 (8th Cir. 1997).
  10. See, e.g., Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 293 (1st Cir. 2001) (awards to prevailing § 1983 plaintiffs are “virtually obligatory”).
  11. Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012).
  12. Aware Woman Clinic, Inc. v. Cocoa Beach, 629 F.2d 1146, 1149–50 (5th Cir. 1980).
  13. See, e.g., Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1301 (1st Cir. 1997).
  14. See, e.g., Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir. 1983).
  15. See Hall v. Borough of Roselle, 747 F.2d 838, 841–42 (3d Cir. 1984); Jordan v. U.S. Dep’t of Justice, 691 F.2d 514, 518 (D.C. Cir. 1982); Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980).
  16. Fox v. Vice, 131 S. Ct. 2205, 2213 (2011); Hughes v. Rowe, 449 U.S. 5, 15 (1980); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). See also Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985) (no “hard and fast rules” for determining whether plaintiff’s claim was frivolous—courts may consider whether plaintiff established prima facie case; whether defendant offered to settle; and whether district court dismissed case before trial or after trial on merits).
  17. Houston v. Norton, 215 F.3d 1172, 1174–75 (10th Cir. 2000).
  18. Dehertoghen v. City of Hemet, 159 F. App’x 775, 776 (9th Cir. 2005); Patton v. Cnty. of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988).
  19. Fox, 131 S. Ct. 2205.
  20. Id. at 2216.
  21. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
  22. Hewitt v. Helms, 482 U.S. 755, 763 (1987).
  23. Hanrahan v. Hampton, 446 U.S. 754, 757–59 (1980).
  24. Farrar v. Hobby, 506 U.S. 103, 111–12 (1992). Accord Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012) (per curiam) (permanent injunction rendered plaintiff prevailing party).
  25. Farrar, 506 U.S. at 112–15.
  26. Id. at 120–25 (O’Connor, J., concurring).
  27. See, e.g., Aponte v. City of Chi., 728 F.3d 724, 727–28 (7th Cir. 2013); Gray v. Bostic, 720 F.3d 887, 893–99 (11th Cir. 2013); Zinna v. Congrove, 680 F.3d 1236, 1239 (10th Cir. 2012); Mahach-Watkins v. Depee, 593 F.3d 1054, 1059–60 (9th Cir. 2010), cert. denied, 131 S. Ct. 898 (2011); Jama v. Esmor Corr. Servs. 577 F.3d 169, 175–76 (3d Cir. 2009); Lippoldt v. Cole, 468 F.3d 1204, 1222 (10th Cir. 2006); Mercer v. Duke Univ., 401 F.3d 199, 203–04 (4th Cir. 2005); Muhammad v. Lockhart, 104 F.3d 1069, 1070 (8th Cir. 1997); Cabrera v. Jakabovitz, 24 F.3d 372, 393 (2d Cir.), cert. denied, 513 U.S. 876 (1994). The Seventh Circuit held that “Farrar can apply . . . where the plaintiff received a monetary award that is more than a nominal $1 but ‘minimal’ relative to the amount sought.” Aponte v. City of Chi., 728 F.3d 724, 727–28 (7th Cir. 2013) (citations omitted).
  28. Maher v. Gagne, 448 U.S. 122, 127 (1980); Milwe v. Cavuoto, 653 F.2d 80, 84 (2d Cir. 1981).
  29. See, e.g., United States v. Washington, 813 F.2d 1020, 1024 (9th Cir. 1987), cert. denied, 485 U.S. 1034 (1988); Reel v. Ark. Dep’t of Corr., 672 F.2d 693, 697–98 (8th Cir. 1982) (plaintiff prevailed on state tort claims, but district court rejected plaintiff’s § 1983 claims as “insubstantial”).
  30. See 2 Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Statutory Attorney’s Fees § 2.08[B] (4th ed. 2014). See, e.g., Vill. of Maineville v. Hamilton Twp. Bd. of Trs., 726 F.3d 762 (6th Cir. 2013); Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. 1981).
  31. 461 U.S. 424 (1983).
  32. Id. at 436. Accord Farrar v. Hobby, 506 U.S. 103, 114 (1992).
  33. “[W]ork on an unsuccessful claim [based on different facts and different legal theories] cannot be deemed to have been ‘expended in pursuit of the ultimate result achieved.’ The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.” Hensley, 461 U.S. at 435 (citation omitted).
  34. Id. at 440.
  35. 532 U.S. 598 (2001).
  36. Id. at 604. An accepted offer of judgment pursuant to Fed. R. Civ. P. 68 qualifies the plaintiff as a prevailing party. Grissom v. The Mills Corp., 549 F.3d 313 (4th Cir. 2008); Util. Automation 2000, Inc. v. Choctawhatchee Elec. Coop., Inc., 298 F.3d 1238 (11th Cir. 2002); Walsh v. Boston Univ., 661 F. Supp. 2d 91 (D. Mass. 2009).
  37. Buckhannon, 532 U.S. at 604 n.7.
  38. See Palmetto Props., Inc. v. Cnty. of DuPage, 375 F.3d 542, 547 (7th Cir. 2004); N.Y. State Fed’n of Taxi Drivers, Inc. v. Westchester Cnty. Taxi & Limousine Comm’n, 272 F.3d 154, 158 (2d Cir. 2001).
  39. See, e.g., Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 715–18 (9th Cir. 2013) (preliminary injunction based on probability of success on merits established plaintiff prevailing party); Sole v. Wyner, 551 U.S. 74, 84–86 (2007) (preliminary injunction did not qualify plaintiff as prevailing party because final decision on merits was in favor of defendant); Coates v. Powell, 639 F.3d 471, 474–75 (8th Cir.), cert. denied, 132 S. Ct. 412 (2011); (defendants’ written offer to settle case for $450,000 accepted by plaintiff by email on eve of trial, which was not incorporated into judicial order, did not qualify plaintiff as prevailing party because there was no “judicial imprimatur” of settlement); Hutchinson v. Patrick, 636 F.3d 1, 8–11 (1st Cir. 2011) (ADA) (class action settlement approved by district court, and district court’s retention of jurisdiction of case qualified plaintiffs as prevailing plaintiffs); La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089–90 (9th Cir. 2010) (settlement over which district court retained jurisdiction qualified plaintiff as prevailing party); Prison Legal News v. Schwarzenegger, 608 F.3d 446, 451–52 (9th Cir. 2010) (same); Walker v. Calumet City, 565 F.3d 1031, 1034–37 (7th Cir. 2009) (order of dismissal entered after city represented it would not enforce contested ordinance did not render plaintiff prevailing party because under was not substantially equivalent to current decree) (relying on T.O. v. LaGrange S.D. No. 1, 349 F.3d 469, 478 (7th Cir. 2003)); Roberson v. Giuliani, 346 F.3d 75, 84 (2d Cir. 2003) (stipulation and order of discontinuance acknowledging parties’ settlement agreement and providing for retention of district court jurisdiction over settlement agreement for enforcement purposes carried “sufficient judicial sanction” to render plaintiffs prevailing parties); Toms v. Taft, 338 F.3d 519, 528–29 (6th Cir. 2003) (private settlement did not qualify plaintiffs as prevailing parties); Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 164–66 (3d Cir. 2002) (settlement incorporated in court order giving plaintiff right to seek judicial enforcement of settlement rendered plaintiff a prevailing party).
  40. Roberson, 346 F.3d at 78, 83. See also Lake Forest, 624 F.3d at 1089–90.
  41. Kay v. Ehrler, 499 U.S. 432, 437–38 (1991).
  42. Perdue v. Kenny A., 130 S. Ct. 1662, 1673 (2010) (“strong” presumption that lodestar method yields reasonable fee); Blum v. Stenson, 465 U.S. 886, 897 (1984) (lodestar normally provides reasonable fee); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“The most useful starting point for determining the amount of a reasonable fee is the amount of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”). See also Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 188, 190 (2d Cir. 2008) (acknowledging Supreme Court has adopted lodestar method “in principle,” but adopting modified approach using reasonable hourly rate to determine “presumptively reasonable fee”). But see McDow v. Rosad, 657 F. Supp. 2d 463, 467 (S.D.N.Y. 2009) (how Arbor Hill “process substantially differs from the lodestar approach” is not obvious).
  43. Perdue, 130 S. Ct. at 1673. Perdue rejected the so-called twelve Johnson factors (Johnson v. Georgia Highway Express, Inc., 488 F.2d 717, 717–19 (5th Cir. 1974)) to compute a reasonable fee award because they gives district courts “‘unlimited discretion’” and “‘little guidance’” in determining a reasonable fee. Id. at 1672 (quoting Pennsylvania v. Del. Valley Citizens Council for Clear Air, 478 U.S. 546, 563 (1986)). By contrast,

    the lodestar method produces an award that roughly approximates the fees that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case . . . is readily administrable, . . . is ‘objective,’ . . . and thus cabins the discretion of trial judges, permits meaningful judicial review, and produces reasonably predictable results.


  44. Id. at 1674.
  45. Hensley, 461 U.S. at 430. See also Perdue, 130 S. Ct. at 1672 (“[A] ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.”) (citations omitted). Id. at 1674.
  46. Fox v. Vice, 131 S. Ct. 2205, 2217 (2011).
  47. Id. at 2216.
  48. Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d Cir. 2005) (quoting Blum, 465 U.S. at 896 n.11). Accord Smith v. Phila. Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997); Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994).
  49. Blackman v. District of Columbia, 397 F. Supp. 2d 12, 14 (D.D.C. 2005).
  50. Ass’n for Retarded Citizens of Conn. Inc. v. Thorne, 68 F.3d 547, 554 (2d Cir. 1995) (citing Miele v. N.Y. Teamsters Conf. Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987)). Accord Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006).
  51. Amato v. City of Saratoga Springs, 991 F. Supp. 62, 66 (N.D.N.Y. 1998). Accord Anderson v. Rochester-Genesee Reg’l Transp. Auth., 388 F. Supp. 2d 159, 167 (W.D.N.Y. 2005). In Farbotko v. Clinton County, 433 F.3d 204 (2d Cir. 2005), the Second Circuit held that the district court erred in basing the hourly rates solely on the rates used in other cases in the federal district. A reasonable hourly rate must reflect the “prevailing market rate.” Farbotko, 433 F.3d at 208. “Recycling rates awarded in prior cases without considering whether they continue to prevail may create disparity between compensation available under § 1988(b) and compensation available in the marketplace. This undermines § 1988(b)’s central purpose of attracting competent counsel to public interest litigation.” Id. at 209. There must be a “case-specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant’s counsel. This may . . . include judicial notice of rates awarded in prior cases and the court’s own familiarity with the rates prevailing in the district,” as well any “evidence proffered by the parties.” Id. A reasonable rate “is not ordinarily ascertained simply by reference to rates awarded in prior cases.” Id. at 208. The same rate should be used for both the trial and appellate courts. Rather than establish the appropriate rates itself, the Second Circuit found it preferable to remand the issue to the district court, which is “in closer proximity to and has greater experience with the relevant community whose prevailing market rate it is determining.” Id. at 210 (citations omitted).
  52. See, e.g., Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 175–77 (2d Cir. 2009). See also authorities cited in 2 Schwartz & Kirklin, supra note 1641, § 5.03.
  53. Simmons, 575 F.3d at 175.
  54. Id. at 176.
  55. Missouri v. Jenkins, 491 U.S. 274, 280–84 (1989). Accord Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 577–88 (2008) (Equal Access to Justice Act).
  56. In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989) (fee application must “include contemporaneous time records of hours worked and rates claimed, plus a detailed description of the subject matter of the work with supporting documents, if any”); Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984) (“the absence of detailed contemporaneous time records, except in extraordinary circumstances, will call for a substantial reduction in any award or, in egregious cases, disallowance”).
  57. Bell v. United Princeton Props., Inc., 884 F.2d 713, 721 (3d Cir. 1989).
  58. Id. (quoting Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983)).
  59. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 298–99 (1st Cir. 2001).
  60. Fox v. Vice, 131 S. Ct. 2205, 2216 (2011).
  61. See, e.g., Binta B. v. Gordon, 710 F.3d 608 (6th Cir. 2013); Balla v. Idaho, 677 F.3d 910 (9th Cir. 2012); Johnson v. City of Tulsa, 489 F.3d 1089 (10th Cir. 2007). But see Alliance to End Repression v. City of Chi., 356 F.3d 767 (7th Cir. 2004).
  62. See, e.g., Anderson v. Rochester-Genesee Reg’l Transp. Auth., 388 F. Supp. 2d 159, 167–69, 171 (W.D.N.Y. 2005) (court reduced rates of plaintiffs’ counsel by 20% because plaintiffs’ counsel failed to exercise proper billing judgment and exclude excessive, redundant, or unnecessary hours).
  63. Perdue v. Kenny A., 130 S. Ct. 1662, 1673–74 (2010); Blum v. Stenson, 465 U.S. 886, 897–98 (1984). See also Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006) (“only in rare circumstances should a court adjust the lodestar figure, as this figure is the presumptively accurate measure of reasonable fees”). “[A] fee applicant seeking an enhancement must produce ‘specific evidence’ that supports the award.” Perdue, 130 S. Ct. at 1673.
  64. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566 (1986). See also Blum, 465 U.S. at 899 (“The ‘quality of representation’ . . . generally is reflected in the reasonable hourly rate. It, therefore, may justify an upward adjustment only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was ‘exceptional.’”).
  65. Perdue, 130 S. Ct. at 1662; Hensley, 461 U.S. at 435. In Perdue, the Supreme Court collapsed “results obtained” and “superior attorney performance” into one factor, i.e., superior performance. Perdue, 130 S. Ct. at 1674. The Court, however, has “never sustained an enhancement of a lodestar amount for performance. . . .” Id. at 1673.
  66. Missouri v. Jenkins, 491 U.S. 274, 282–84 (1989). Accord Perdue, 130 S. Ct. at 1675. The rationale for allowing an upward adjustment for delay of payment, or the use of current rates, is that “compensation received several years after the services were rendered—as it frequently is in complex civil rights litigation—is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed.” Id. at 283.
  67. City of Burlington v. Dague, 505 U.S. 557, 560–61 (1992). Accord Perdue, 130 S. Ct. at 1676.
  68. Perdue, 130 S. Ct. at 1673.
  69. 477 U.S. 561 (1986).
  70. Id. at 564–65.
  71. Id. at 575.
  72. Blanchard v. Bergeron, 489 U.S. 87, 92–94 (1989).
  73. Venegas v. Mitchell, 495 U.S. 82, 86–88 (1990).
  74. Webb v. Cnty. Bd. of Educ., 471 U.S. 234, 250 (1985).
  75. W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 86–92 (1991). An amendment to § 1988 authorized an award of expert witness fees only in actions under 42 U.S.C. § 1981 or § 1981(a). 42 U.S.C. § 1988(c) (2006).
  76. Blum v. Stenson, 465 U.S. 886, 894–95 (1984). Accord Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 487 n.31 (1982).
  77. 209 U.S. 123 (1908). See supra Chapter 13.
  78. Hutto v. Finney, 437 U.S. 678, 690–92 (1978).
  79. Missouri v. Jenkins, 491 U.S. 274, 279–84 (1989).
  80. 473 U.S. 1 (1985).
  81. Id. at 8–11. See also Bogan v. City of Boston, 489 F.3d 417, 431 (1st Cir. 2007) (Rule 68 requires comparison between amount of offer at judgment, including “costs then accrued,” and damages recovered plus pre-offer fees actually awarded, not pre-offer fees requested by plaintiffs).
  82. Marek, 473 U.S. at 6 (citation omitted). See also Barbour v. City of White Plains, 700 F.3d 631, 633–34 (2d Cir. 2012); Lima v. Newark Police Dep’t, 658 F.3d 324, 330–31 (3d Cir. 2011).
  83. Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1026–28 (9th Cir. 2003) (non-§ 1983); Payne v. Milwaukee Cnty., 288 F.3d 1021, 1026–27 (7th Cir. 2002); Harbor Motor Co. v. Arnell Chevrolet-Geo, 265 F.3d 638, 645 (7th Cir. 2001) (non-§ 1983); O’Brien v. City of Greers Ferry, 873 F.2d 1115, 1120 (8th Cir. 1989); Crossman v. Marcoccio, 806 F.2d 329, 334 (1st Cir. 1986), cert. denied, 481 U.S. 1029 (1987). Contra Jordan v. Time, Inc., 111 F.3d 102, 104 (11th Cir. 1997).
  84. 475 U.S. 717 (1986).
  85. Id. at 730–32 & n.19. Accord Venegas v. Mitchell, 495 U.S. 82, 87 (1990). See also Astrue v. Ratliff, 130 S. Ct. 2321 (2010) (EAJA).
  86. Evans, 475 U.S. at 731–32.
  87. Perdue, 130 S. Ct. at 1676; Bogan, 489 F.3d at 431; Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1065 (9th Cir. 2006) (following Chalmers v. Los Angeles, 795 F.2d 1205 (9th Cir. 1986)); Browder v. City of Moab, 427 F.3d 717, 721 (10th Cir. 2005).