Attorney FEES – Lovell

* American rule: - every party takes care of Attorney fees * Some states have embraced the catalyst theory – * England has fee shifting in every civil case: - there is a SC that determines nothing in England but attorney fees. * The reality with this is that there is less litigation because any losing party has to pay the others fee. * The cost should be reasonable so you can’t just say that you billed all the amount and now need to be paid. * Civil rights attorney fee: - The second front: - The battle lines for civil rights – there is grudging attitude on court awarded attorney fees – since 1987 we have had the grudging area of the court allowing attorney fees – hard to get fees if prevailing party, hard to calculate – grudging – * The attorney fee is statutory – so congress can change the rules. * The case below – if negotiating on fees as a plaintiff then negotiate the fees in the agreement (attorney fees) – so you negotiate the fee with the settlement decree or you will be out of luck. * Dissent: - * Pg. 912- there is a 2 tier standard for a prevailing P: - * You get the fees regularly absent circumstances that would render the fee unjust. E.g pro se representation. * Garland independent school: - ct held that you don’t need a central issue standard; - just need to point to a …..

Civil Rights Attorneys’ Fees Award Act of 1976 (42 U.S.C. § 1988(b)) 1. In any action or proceeding to enforce a provision of §§ 1981, 1982, 1983, 1985, and 1986 of this Title, Title IX of the Education Amendments of 1972 or Title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the U.S., a reasonable attorney’s fee as part of the costs a. Leg. history indicated Congress intended the standard for awarding fees under Titles II and VII of the 1964 Civil Rights Act to “be generally the same” 2. Text of § 1988(b) seems to make fee awards discretionary w/ the court – but award of fees to successful civil rights Ps is REQUIRED, absent special circumstances that would render such an award unjust b. “Special circumstances” that might justify denial of fees  very narrow category * Only circumstance found to justify denial of fees was for P litigating pro se * Circumstances that do not justify denial of fees: inability to pay counsel, D’s food faith, innocent taxpayers would have to pay, etc. 3. A prevailing P should ordinarily recover absent special circumstances  if P litigated all his claims to judgment and won them all she qualifies as a “prevailing party” w/in the meaning of § 1988(b) 4. A prevailing D may recover fees ONLY when litigation is unreasonable, frivolous, meritless, contempt of court, stock holders revenue suit or vexatious (i.e., groundless or w/o foundation – not just that P ultimately lost) 5. Equitable considerations that counsel awarding attorney’s fees to prevailing P which are absent in the case of a prevailing D: (i) P is the chosen instrument of Congress to vindicate a policy Congress considered of the highest priority (ii) when district court awards counsel fees to prevailing P, it is awarding them against a violator of federal law.

* Buckhannon Board & Care Home v. W.V. Dept of Health and Human Resources: - P operates assisted living residences and failed an inspection (was ordered to close the residences) by state fire marshal b/c some of the residents were incapable of “self-preservation” as defined under state law. * P brought suit against state of W.V., 2 of its agencies, and 18 individuals seeking declaratory and injunctive relief that the “self-preservation” req. violated the Fair Housing Amendments Act of 1988 and the Americans w/ Disabilities Act of 1990. * The next year, W.V. leg enacted 2 bills eliminated the “Self-preservation” req. and district court granted Ds’ motion to dismiss the case as moot. Ps requested attorney’s fees as the “prevailing party” under FHAA and ADA (both allowed court in its discretion to award attorney’s fees). * Ps claim they are entitled to attorney’s fees under the “catalyst theory” – P is a prevailing party if it achieves the desired result b/c the lawsuit brought about a voluntary change in D’s conduct * Holding: The catalyst theory is NOT a permissible basis for the award of attorney’s fees. “Prevailing party: means one who has been awarded some relief by the court whereby there has been an enforceable alternation of the legal relationship of the parties. * Precedent counsels AGAINST authorizing attorney’s fees w/o a corresponding material alteration in the legal relationship of the parties. D’s voluntary change in conduct lacks the necessary judicial imprimatur on the change. * Leg history cited by Ps is at best ambiguous as to the availability of the catalyst theory for awarding attorney’s fees and clearly insufficient to alter the accepted meaning of the statutory term. * Policy: * Too fact-specific  “catalyst theory” hearing would require analysis of D’s subjective motivations in changing its conduct (highly fact-bound inquiry) – not a formula for ready administrability. * Deterrence/settlement: D might refrain from altering its conduct, fearing liability for fees as the price of voluntary action. And D’s voluntary cessation of a challenged practice does not prevent federal court of determining legality of the practice (unless absolutely clear alleged wrongful behavior cannot be reasonably expected to recur) * If case is not found to be moot and P later procures enforceable judgment, court may award fees and this possibility gives D a strong incentive to settle where it can negotiate attorney’s fees and costs. * Black’s Law Dictionary (1999) defines “prevailing party” as a party in whose favor a judgment is rendered, regardless of the amount of damages awarded * Congress intended to permit attorney’s fees award only when a party has received at least some relief on the merits of his claim: * Even an award of nominal damages suffices – Farrar v. Hobby * Settlement agreements enforced through a consent decree may serve as basis for an attorney’s fees award – Maher v. Gagne * Even though consent decree doesn’t include an admission of liability by D, it is a court-ordered change in the legal relationship b/w P and D * Decisions establish that 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.
d. Court has never awarded attorney’s fees for nonjudicial alteration of actual circumstances * Dissent: I would hold a party “prevails” when she achieves, by instituting litigation, the practical relief sought in her complaint. The Court’s narrow construction of the words “prevailing party” is unsupported by precedent and unaided by history or logic. Congress prescribed fee-shifting provisions like those included in FHAA and ADA to encourage private enforcement of laws designed to advance civil rights. P should get attorney’s fees when a private party’s lawsuit vindicates rights Congress sought to secure * N. C. Dept of Transportation v. Crest St. Community Council (1986) - § 1988(b) authorizes fees only in an action or proceeding to enforce the listed civil rights laws. It is entirely reasonable to limit the award of attorney’s fees to those parties who, in order to obtain relief, found it necessary to file a complaint in court. * Dissent (Brennan): today’s holding ensures that no challenge brought under a statute covered by § 1988() will ever be settled w/o a court action.

Thursday – Dec 2- DSM EMBASSY CLUB
801 Grand Ave

Court awarded Attorney Fees
Gordy Allen: -
Gratz and grutter v. Bollinger * SC generally can hear cases that are in final decisions. But in Grutter and Gratz, Grutter went up and was pending in the SC and Gratz was at the 6th Circ – So SCOTUS took the case and reviewed the case from the DCT opinion and not the 6th Circ opinion. This is unusual case. * Normally you can get to SCOTUS by interlocutory appeal or on appeal after final results. * What is the rationale for applying the Hensley rule: = * Partial prevailing Henseley analysis – only won on the narrowly tailored and not on everything – so partially prevailing thus ct makes a 50% cut. * Lovell: - thinks he is dead wrong coz the Hensley talks about splitting up the claim and not the issue – if Grutter and Gratz were in the lawsuit then you can exclude everything from the one where they lost but here it was different – so here the contentions raised was narrowly tailored and diversity and making a 50% cut was wrong. * You cannot get fees unless you are a prevailing party – prevailing party is the door which the claims get through – but once you get through the door the issue becomes by what % you prevailed – what stuff did you prevail in? * Your appeal if you don’t like your fee is to the circuit court. The 8th Circuit has actuallys aid that they don’t like fee cases and so the P and D have to try and agree to the fees. * If you get a Hensley issue – make cuts so thet court can give you credibility. * Contemporaneous billing: - have a bill that you have a recorder contemporaneously with the event and it is better than reconstructed bill but ct will allow you to reconstruct. * Time you start reconstructing the bill will be recovered in the bill so long as you win in most of your bill – but cts generally require contemporaneous billing * Contemporaneous billing is just keeping log of your time as you work. * Lodestar -= Reasonabel rates * reasonable hours = Reasonable fee * Market rate: - market in the community in which the plaintiff sits unless you can show that you can had to go out of the area to get a competent attorney to sue. If you can show that you have to go out of state – then you can use the rate they charge out of the market. * Note: - If you charge high rates – don’t charge high hours – but not both.

Last Class – Civil Rights

* Shaw case: - fee awards against the feds – pre judgment is protected by the 11th am. – sovereign immunity. 1 * Purdue case; - said there cold be an exception for something….

Questions on Exam * Employment issue on exam: - do binomials – * Voting area: - Get a felony disenfranchisement case – Suggest that we read Hayden, 449 F.3d 305 – 2nd circuit * Check also the Johnson v. Farrakhan * Take home exam