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Section 1988(b) Attorney's Fees

It's black letter law that a trial court's awarding (or not) of attorney's fees is subject to an abuse of discretion standard of review.  Thus, Thomas of City of Tacoma, No. 03-35799 (9th Cir. Jun. 8, 2005) seems unremarkable.  Why would the Ninth Circuit choose to publish a case discussing 1988(b)?  The answer, I think, is that they wanted to clarify standards of review:

Awards of attorney’s fees are generally reviewed for an abuse of discretion. Watson v. County of Riverside (CA9 2005).  However, we only arrive at discretionary review if we are satisfied that the correct legal standard was applied and that none of the district court’s findings of fact were clearly erroneous. Ferland v. Conrad Credit Corp. (CA9 2001). If the parties contend the district court made a legal error in determining the fee award, then de novo review is required. Hall v. Bolger (CA9 1985) (“[A]ny elements of legal analysis and statutory interpretation which figure in the district court’s decision are reviewable de novo.”). All factual findings are reviewed for clear error. Fischer v. SJB-P.D. Inc. (CA9 2000).

Slip op. at 6591-6592.  These hyper-technical distinctions on what standard of review will govern are not just extremely important: they're dispositive. 

In this case, e.g., the trial court refused to award attorney's fees to plaintiff's counsel even though his client was awarded $15,000 in actual, and $20,000 in punitive damages.  Refusing to award attorneys fees is such a situation is not per se an abuse of discretion.  But the Ninth Circuit nonetheless reversed the court's order because the trial court made an error of law when denying the plaintiff's request for attorney's fees.

In denying Plaintiff’s request for fees, the district court concluded that granting an award of attorney’s fees to Plaintiff would be unjust because doing so would “result in a windfall.” In support of this finding, the district court reasoned that “any outside observer would easily conclude that [Plaintiff] did not obtain what [he] sought in this case” as he only prevailed on one of his many claims.  As legal support, the district court relied on Farrar v. Hobby, (U.S. 1992), which recognized that there are occasions when a prevailing party’s reasonable fee is no fee at all.

Id. at 6593.  In Farrar, an attorney filed a huge lawsuit on behalf of his client, seeking millions of dollars and a bunch of other funky relief.  The lawsuit was, at best, overzealous.  Still, the jury awarded nominal damages; yet the trial court denied his fee application.  Weighing “the extent of relief given” with the relief sought, “the significance of the legal issue on which the plaintiff prevailed," and the “public purpose served” by the litigation, the Court affirmed.

Unlike in Farrar, here the plaintiff was awarded significant damages.  (Huge verdicts are rare in civil rights cases.)  Thus, the district court's reliance on Farrar was legal error, and was therefore subject to de novo review.

The practice tip, care of Judge McKay is this:  Commit the trial court to a legal basis for awarding attorney's fees.  Then, on appeal, show that the judge's actions were incorrect, not as a factual matter, but because he or she improperly applied the law. 

The added benefit is that counsel making this argument can say, "The judge made a legal error," instead of, "This judge abused his discretion."  Even appellate courts recognize that judges can make legal errors.  But few appellate courts consider their brothers and sisters of the bench capable of behaving unreasonably or unfairly.  See, e.g., How Appellate Courts Admonish Trial Courts, and Why You Should Listen.

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