Section 1988 Fees Need Not Be Proportional to Damages

Litigating cases against government entities can be frustrating.  In some cases, it seems that a city or state agency will spare no expense in litigation to defend against a claim with the result that the cost of litigation will greatly exceed the damages awarded.  Successful civil rights claimants are entitled to attorney fees under 42 USC §1988, but the question is whether the attorney can get fairly compensated the time it took to litigate the claim.

The First District Court of Appeal recently issued a decision that will help litigants with this concern.  In Harman v. City and County of San Francisco, the city argued that a fee award of $1.1 million should be overturned since it was grossly disproportionate to the $30,000 in damages awarded by the jury.  The court ruled, however, that proportionality was not the legal standard against which to judge fee awards under section 1988. 

Instead or proportionality, the court bases a fee award under section 1988 on a lodestar calculation that includes time reasonably spent in pursuit of successful claims.  Time spent on tasks attributable to multiple claims need not be apportioned to account for success on only some of those claims — the standard is reasonableness of the time spent.

Similarly, a successful claimant may be awarded fees for unsuccessful claims where they are related to successful claims and the court finds a reasonable relationship between significance of the relief awarded and the hours expended on the litigation.  The amount of the damage award does not control this question:  “a slight monetary recovery will not control assessment of the appropriate amount of attorney fees where a constitutional right is vindicated or a significant public benefit conferred.”

One of the important lessons of this case is the difficulty in challenging an award of fees on appeal.  The standard of review is “abuse of discretion.”  Thus, although the Court of Appeal noted that had the question “been presented to us in the first instance, we may not have awarded attorney fees that so far exceed the recovery of damages,” the award by the trial court was not an abuse of discretion.  The appellate court took note of the fact that the trial judge that made this award “presided over the entire lengthy proceedings, including two remands,” and “handled this case for several years.”  In that situation, the appellate courts will be especially hesitant to disturb the trial court’s attorney fee award.

Congratulations to my former colleagues, Paul Beard and Sharon Browne at Pacific Legal Foundation, and my law school classmate, Andrea Miller of Nageley, Meredith, & Miller, for this outstanding victory.

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