Nephew v. City of Aurora

BARRETT, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a), Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument. The issue in this appeal concerns the proper measure of attorney’s fees to be awarded a prevailing party under 42 U.S.C. § 1988. Plaintiffs here sought to prove at trial that they were assaulted, battered, and falsely arrested by Aurora, Colorado (the “City”), police officers pursuant to a custom or policy of the City to discriminate against blacks. Injunctive and declaratory relief and damages were sought against the City, its Mayor, and its City Council; at the close of the plaintiffs’ case, however, the City, Mayor, and City Council were removed from the case upon the district court’s grant of their motion for a directed verdict. The case then proceeded to trial on the plaintiffs’ claims for compensatory and punitive damages in the amount of $2 million against the individual police officers. The jury found in favor of plaintiffs Fulton and Perkins and against plaintiffs Nephew and Neloms. The jury awarded one dollar ($1.00) each to Fulton and Perkins as compensatory damages; no punitive damages were awarded. In its ruling upon Fulton and Perkins’ motion for attorney’s fees, the district court reduced the amount sought by a portion of the time spent on a related state case,1 and then reduced that amount further on the basis that only two of the four plaintiffs prevailed. The district court expressly refused to reduce the award, as the defendants urged, on the grounds that plaintiffs Fulton and Perkins had won only nominal damages. Accordingly, the court awarded $12,500 as a reasonable fee under the circumstances. The issue therefore becomes whether, in a § 1983 case in which plaintiffs proceed only to litigate monetary damages, the attorney’s fees awarded should be reduced if the plaintiffs in fact are awarded only nominal damages of $2.00. Although this Court has on many occasions examined the proper measure of attorney fees under 42 U.S.C. § 1988, it has yet to address the precise issue presented in this appeal. There is language in Ramos v. Lamm, 713 F.2d 546, 557 (10th Cir.1983), stating that fee awards should not be reduced under the circumstances of the present case: “Some courts have reduced fees when the thrust of the suit was for monetary recovery and the recovery was small compared to the fees counsel would have received if compensated at a normal rate for hours reasonably expended. We reject this practice.” In Ramos this reasoning was justified on the basis that “[pja-rties acting as private attorneys general should be reasonably compensated for their vindication of the public policy even if they themselves do not receive a large financial benefit.” Id. The plaintiffs in the present case argue that the district court’s award of attorney’s fees should therefore not be reduced because the jury did in fact find that their constitutional rights had been violated, thus vindicating their primary purpose in bringing suit. Ramos was not the proper vehicle for this Court to expound on the significance of a nominal monetary recovery in a § 1983 suit in which substantial damages are sought. Monetary damages were not at stake in Ramos. Rather, Ramos was a — 1466 — suit that concerned the constitutionality of conditions in Old Max, Colorado’s maximum security prison. The plaintiffs there sought only declaratory and injunctive relief — as opposed to damages — because of the antiquated and inadequate conditions of the prison. Thus, the language from this Court’s Ramos opinion quoted above is dicta. It is not binding precedent as to the issue with which we are here confronted. It is our view that the quoted language from Ramos, while dicta, does not fully address the purposes underlying the attorney’s fees provision in the civil rights laws. The purpose of § 1988 is not simply “to encourage private enforcement of the civil rights laws,” Id. at 557, even though such might be viewed as a fair statement of the purpose behind the civil rights laws generally. But as to the purpose of § 1988 in particular, this Court has been specific: Beyond providing a reasonable evaluation of a lawyer’s services, the approach set forth in Hensley [v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ] advances the general intendment of section 1988, providing incentives for meritorious civil rights litigation. It instructs a lawyer to critically evaluate the prospects for success in each potential civil rights claim, and it encourages the lawyer to proceed only with those claims that are indeed meritorious. The lawyer can go forward with difficult arguments, confident that the client’s fee award will reflect the obstacles that the attorney overcomes. The lawyer can go forward with nonmonetary claims, secure in the knowledge that the fee award will not be diminished on account of the absence of damages. Cooper v. Singer, 719 F.2d 1496, 1502 (10th Cir.1983) (in banc) (emphasis added). Although Cooper was decided after Ramos, both were based on the Supreme Court’s reasoning in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In Hensley, after adopting a typical formulation of the term “prevailing party” 2 for purposes of the award of attorney’s fees, the court proceeded to describe several factors to be considered in determining a reasonable fee award. One “important factor” in determining the “reasonableness” of a fee award is the “results obtained.” Id. at 434,103 S.Ct. at 1940. If the plaintiff obtains excellent results, his attorney should receive a fully compensatory fee. Id. at 435, 103 S.Ct. at 1940. If, on the other hand, the plaintiff achieves only limited success, simply multiplying “the hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.” Id. at 436, 103 S.Ct. at 1941. As the Court explained: “Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.” Id. While we have no trouble finding that the plaintiffs in the instant case are the prevailing parties even though they won only nominal damages, see, e.g., Skoda v. Fontani, 646 F.2d 1193 (7th Cir.1981), we conclude that the district court, in determining the reasonableness of the fee award, abused its discretion by not discounting the fee award in light of the fact that plaintiffs won only nominal damages. Other courts have followed such an approach, see, e.g., Burt v. Abel, 585 F.2d 613, 618 (4th Cir.1978); Perez v. University of Puerto Rico, 600 F.2d 1 (1st Cir.1979). We believe this approach furthers the twin purposes of § 1988 of providing meaningful access to the judicial process to private individuals with civil rights grievances and of forcing attorneys to critically evaluate the prospects of success of their claim. We recognize that this holding will likely compel attorneys to prognosticate with some degree of accuracy their prospects of success in terms of dollars and cents. Even so, we believe it to be a necessary — 1467 — burden in an attempt to ensure that attorneys pursue only meritorious civil rights claims. By this holding we do not imply that an award of nominal damages necessarily means that a corresponding fee award must also be nominal. However, where, as here, a plaintiff seeks substantial damages but wins only nominal damages, the award must be reduced to account for the plaintiffs’ very limited success.3 REVERSED AND REMANDED. Footnotes [1] The police officers, Thomison and Peterson, were the first to file suit as a result of the underlying incident in this case. Their suit in state court for assault and battery was eventually dismissed by stipulation; the case then proceeded to trial in federal court under 42 U.S.C. § 1983 based on the plaintiffs’ combined claims. [2] “[P]laintiffs may be considered ‘prevailing parties' for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought-in bringing suit.” 461 U.S. at 433, 103 S.Ct. at 1939. [3] As the Supreme Court recognized in Hensley, there is no precise rule for making this determination. "The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.” 461 U.S. at 436-437, 103 S.Ct. at 1941.