Bruce J. Turkle ()
The recent federal district court decision in Deferio v. Bd. of Tr. of State Univ. of New York presents an example of the seemingly paradoxical instance of a plaintiff being granted attorney fees in a civil rights action in which he was awarded only nominal damages. The Deferio court, quoting the Supreme Court’s opinion in Farrar v. Hobby that “‘[n]ominal relief does not necessarily a nominal victory make,’”1 awarded plaintiff in excess of $34,000 in attorney fees and costs despite granting him only $1 in damages. Deferio thus recognized that a party may be deemed to have ‘prevailed’ despite being denied meaningful compensatory damages.
James Deferio, a Christian evangelist, brought a U.S.C. §1983 action, alleging a free-speech claim under the First Amendment and a due process claim under the Fourteenth Amendment, arising from his unsuccessful attempt to freely express his religious beliefs on the campus of the State University of New York at Albany on two separate occasions. Deferio sought a declaratory judgment and a preliminary injunction enjoining defendants from applying the challenged policies so as to prevent him or other speakers from “engaging in their desired and constitutionally protected speech activities.”
After the action was commenced, SUNY-Albany adopted a new policy which was “more permissive and reasonable than was the challenged SUNY Albany policy.” The court denied Deferio’s motion for a preliminary injunction, finding that “in light of the changed policies, ‘it [was] not likely that Plaintiff would again experience either the First Amendment violation or the Fourteenth Amendment violation…if he again attempted to speak at SUNY-Albany in the future.’”2
Deferio’s underlying constitutional claim for nominal damages and attorney fees remained pending. In August, 2012, the court signed a Consent Order negotiated between the parties. Deferio subsequently filed a motion, pursuant to 42 USC §1988(b) and Fed. R. Civ. P. 54(d)(2), to recover $56,057.25 in attorney fees, costs and expenses. The court ultimately awarded Deferio $34,773, which was comprised of $32,515 in attorney fees and $2,258 in costs.
The Deferio court recognized that “[u]nder 42 U.S.C. §1988, there is a two-part test for determining whether a party is entitled to receive reasonable attorneys’ fees.”3 The party must first be a “prevailing party” and, secondly, the party seeking attorney fees must prove that his request is “reasonable.” In Deferio, defendant “acknowledge[d] that Plaintiff is the ‘prevailing party,’ thus lightening Plaintiff’s burden on this issue such that, in order to succeed on it, Plaintiff need only show facial merit in support of [his] argument.”4
The Supreme Court in Farrar held that a plaintiff who is awarded $1 in nominal damages is a “prevailing party” because “[a] judgment for damages in any amount, whether compensatory or nominal, modifies defendant’s behavior for the plaintiff’s benefit by forcing the defendant to pay an amount of money he otherwise would not pay.”5 A plaintiff does not need to be successful on every claim, “nor even the most crucial one,” to be a prevailing party.6 Success on any significant issue that achieves “some of the benefit” sought is sufficient.7 “An award of nominal damages, through either an enforceable judgment or a court-ordered consent decree, imparts the status of a ‘prevailing party’ upon the plaintiff.”8
Conversely, “where a party obtains a purely ‘technical’ victory, such as an award of only nominal damages on a secondary claim of a multi-claim case, attorney fees should usually not be awarded.”9 The plaintiff in Farrar sued six defendants alleging a conspiracy to deprive him of his civil rights; the jury found in his favor on only a single tangential claim against one of the six defendants. The plaintiff sought $17 million in damages.
The Supreme Court reversed an award of attorney fees because plaintiffs had achieved only a “technical” victory; although a jury determined that plaintiffs’ civil rights were violated, plaintiffs did not prove damages since the jury found that the deprivation of rights was not the proximate cause of plaintiffs’ damages.10 The Deferio court recognized that “[w]here a ‘prevailing party’ has obtained a nominal damage award, courts in this Circuit determine whether the ‘recovery was de minimis, such that low attorney’s fees or no attorney’s fees should be awarded.’”11
‘Public Purpose’ Exception
The Farrar court emphasized the primacy of the degree of success obtained in determining the reasonableness of an award of attorney fees.12 The court ruled that when a plaintiff seeks compensatory damages but only receives nominal damages, “the only reasonable fee is usually no fee at all.”13 This is because, among other things, “the awarding of nominal damages…highlights the plaintiff’s failure to prove actual, compensable injury.”14 The Second Circuit has held that if a lawsuit merely gives plaintiff “the moral satisfaction of knowing that a federal court concluded that their rights had been violated…,” he will typically not be awarded his attorney fees.15
Justice Sandra Day O’Connor, in her concurrence in Farrar, identified a “significant public purpose exception” to the above-referenced rule. O’Connor identified three factors that courts should consider in determining whether a plaintiff succeeded in some way beyond the judgment for nominal damages: (1) “[t]he difference between the amount recovered and the damages sought” (which in most nominal damages cases will disfavor an award of fees); (2) “the significance of the legal issue on which the plaintiff claims to have prevailed”; and (3) whether the litigation “accomplished some public goal.”16 Under these factors, “‘[a] civil rights plaintiff who obtains meaningful relief has corrected a violation of federal law and, in so doing, has vindicated Congress’s statutory purposes,’”17 has been deemed eligible for an award of attorney fees.
In this circuit, the “public purpose” exception has not regularly resulted in an award of attorney fees. In Pino v. Locascio,18 the Second Circuit explained that: “[t]he vast majority of civil rights litigation does not result in ground-breaking conclusions of law, and [will warrant the award only] if a plaintiff recovers some significant measure of damages or other meaningful relief.”19 In Pino, plaintiff, a patient finance clerk at a hospital, sued her supervisor and the hospital alleging sexual harassment, constructive discharge, and retaliation. She subsequently voluntarily dismissed her claims against her supervisor and, on the first day of trial, withdrew her constructive discharge and retaliation claims against defendant hospital as well as her requests for injunctive and declaratory relief. Ultimately, the jury awarded her $1 in nominal damages on the sexual harassment charge. The Second Circuit thereafter reversed the district court’s award of attorney fees in the amount of $50,591, holding that “attorney’s fees and costs are usually not appropriate when a plaintiff recovers only nominal damages.”
More recently, in William Foos v. Monroe-2 Orleans BOCES,20 the Western District of New York, quoting the Second Circuit in McGrath v. Toys “R” Us, recognized that “[i]n civil rights litigation, an ‘award of fees’ to a plaintiff recovering nominal damages ‘will be rare,’ appropriate only when a plaintiff’s success relies on a ‘new rule of liability that serves a significant public purpose.’”21 Plaintiff prevailed in her gender discrimination suit against her former employer, but failed to prove damages beyond her lost wages and, consequently, the jury did not award her any compensatory damages. The court, in denying her attorney fees, held that “there is no particular significance to the legal issue on which plaintiff prevailed because such did not establish a new theory of liability and the resolution of such has no significance beyond the parties to this case.”
The Deferio court emphasized that since plaintiff had only sought nominal damages, “there was no difference between the award sought…and the award actually obtained…”22 Moreover, Deferio involved a constitutional issue and “prompted Defendants to adopt a new policy for SUNY Albany.”
Akin to Deferio is Cabrera v. Jakabovitz,23 where the Second Circuit held that a defendant must pay an attorney fee award because “plaintiffs prevailed on a significant legal issue—namely, that landlords can be held liable for employing real estate brokers who are engaged in racial steering.” Quoting Justice O’Connor’s concurrence in Farrar, the court noted that “[o]ne does not search ‘in vain for the public purpose’ this litigation has served…That purpose is readily apparent: Breitman’s loss in this case serves as a clear warning to landlords that the law will not tolerate their use of brokers who discriminate invidiously.”24 In Otero v. Colligan,25 “Plaintiff was successful on his one and only claim against all Defendants…[and] Plaintiff prevailed on a novel and significant legal issue, whose resolution benefitted other public employees.”26
Another comparable decision is Anderson v. City of New York,27 an excessive force action brought under 42 U.S.C. §1983. There, the Southern District of New York granted judgment as a matter of law against plaintiffs on their claim that their car had been illegally searched; however, plaintiffs’ remaining constitutional and state law claims went to the jury. The jury returned a verdict in their favor on the constitutional claims and awarded one plaintiff compensatory damages of $2,500 and the other plaintiff nominal damages of $1.
The Second Circuit rejected defendants’ argument that plaintiffs’ “victory is so purely technical or ‘de minimis,’” emphasizing that “[a]lthough this case created no new rule of liability…it nonetheless served ‘some public goal.’” The court stressed that “[e]ven a modest award of damages in an excessive force case against police officers confers an ‘overall benefit to society,’ because ‘an individual damage action to redress instances of police misconduct is often the only tool reasonably available to vindicate society’s interest in ensuring that those who enforce the law also abide by it.’”28
At issue in Husain v. Springer29 was a decision by defendant Marlene Springer, the president of the College of Staten Island, nullifying and rescheduling a student government election in reaction to a student newspaper’s endorsement of a slate of candidates. Plaintiffs, who include editors of the student newspaper, some of whom were candidates in the election, alleged that defendants violated their First and Fourteenth Amendment rights by imposing viewpoint-based restrictions on the publication of the newspaper. Ultimately, the plaintiffs obtained the voluntary repeal of the challenged rule, without an admission of liability by the sole remaining defendant, and a comprehensive statement of the students’ First Amendment rights from the Second Circuit, over a strong dissent.
The Eastern District of New York in Husain awarded plaintiff in excess of $204,000 in attorney fees and costs, notwithstanding the award of nominal damages, finding that plaintiffs had “vindicated their First Amendment rights and received a favorable ruling that they were injured because defendant’s actions resulted in the chilling of their speech.”
As a general rule, courts in this circuit have denied attorney fees to civil rights plaintiffs who prevailed but were awarded only nominal damages, reasoning that they achieved nothing more than the vindication of their individual rights, without establishing any new rule of law or having any far-reaching effect. As the Second Circuit held in Carroll v. Blinken, “[w]here the damage award is nominal or modest, the injunctive relief has no systemic effect or importance, and no substantial public interest is served, a substantial fee award cannot be justified.”30
Bruce J. Turkle is a partner in the litigation department at Phillips Nizer. He can be reached at firstname.lastname@example.org.
1. Deferio, 2014 U.S. Dist. LEXIS 9417, at *19-20 (N.D.N.Y. Jan. 27, 2014) (citing Millea v. Metro-North R.R., 658 F.3d 154, 168 (2d Cir. 2011) (quoting Farrar v. Hobby, 506 U.S. 103, 120-21, 113 S. Ct. 566 (1992)).
2. Id. at *3-4.
3. Id. at *12.
4. Deferio, 2014 U.S. Dist. LEXIS 9417, at *18.
5. 506 U.S. at 112-13.
6. LaRouche v. Kezer, 20 F.3d 68, 71 (2d Cir. 1994) (citing Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)).
7. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (internal quotations and citation omitted); see Lyte v. Sara Lee Corp., 950 F.2d 101, 103 (2d Cir. 1991).
8. Deferio, 2014 U.S. Dist. LEXIS 9417, at *12-13 (citing Buckhannon Bd. and Care Home v. W. Va. Dept. of Health & Human Resources, 532 U.S. 598, 604 (2001)) (“implying that a court-ordered consent decree materially alters the legal relationship between the parties as much as an enforceable judgment on the merits”).
9. Anderson v. City of New York, 132 F.Supp.2d 239, 241-2 (S.D.N.Y. 2001) (citing Farrar, supra, 506 U.S. at 114-16; 117-18)(O’Connor, J., concurring).
10. Farrar, supra, 506 U.S. at 105-07.
11. Deferio, 2014 U.S. Dist. LEXIS 9417, at *17 (citing Scott v. Hand, 07-CV-0221, 2010 U.S. Dist. LEXIS 37527 (N.D.N.Y. April 15, 2010)(quoting Millea v. Metro-North R.R., supra, 2010 U.S. Dist. LEXIS 1436, at *14).
12. Farrar, supra, 506 U.S. at 114 (citing Hensley v. Eckerhart, supra, 461 U.S. at 436).
13. Id. at 115.
15. Pino v. Locascio, 101 F.3d 235, 239 (2d Cir. 1996)(quoting Farrar, supra, 506 U.S. at 114).
16. Farrar, 506 U.S. at 121. These criteria were expressly identified by the Deferio court, 2014 U.S. Dist. LEXIS 9417, at *17 (citing Millea, supra, 2010 U.S.Dist. LEXIS 1436, at *5) (quoting Farrar, 506 U.S. at 121-22)(O’Connor, J., concurring).
17. Husain v. Springer, 2013 U.S. Dist. LEXIS 37134, at*13-14 (E.D.N.Y. March 14, 2013) (quoting Fox v. Vice, 131 S. Ct. 2205, 2214 (2011)).
18. Pino, supra, 101 F.3d at 238-39.
20. 2013 U.S. Dist. LEXIS 6669 (W.D.N.Y. Jan. 16, 2013).
21. Id., at *9 (quoting McGrath v. Toys “R” Us, 409 F.3d 513, 518 (2d Cir. 2005) (internal quotations omitted)). See also, Schlant v. Victor Belata Belting, 2001 U.S. Dist. LEXIS 16539, at *13 (W.D.N.Y. Oct. 2, 2001)).
22. Deferio, 2014 U.S. Dist. LEXIS 9417, at *20.
23. 24 F.3d 372 (2d Cir. 1994).
24. Id. at 393.
25. 2006 U.S. Dist. LEXIS 44001 (D. Conn. June 28, 2006).
26. Id., at *14.
27. 132 F.Supp.2d 239 (S.D.N.Y. 2001)
28. Id., at 242 (quoting Milwe v. Cavuoto, 653 F.2d 80, 84 (2d Cir. 1981).
29. 2013 U.S. Dist. LEXIS 37134, at *14 (E.D.N.Y. March 14, 2013).
30. 105 F.3d 79, 81 (2d Cir. 1997).