The IR&R Sourcebook on Attorneys’ Fees in Civil Rights Cases

Vol. 31 No. 3

By

Robert Weiner is head of the Litigation Practice at Arnold & Porter in Washington, D.C. He chairs the Equal Access to Civil Justice Committee of the American Bar Association’s Section on Individual Rights and Responsibilities.

The Section of Individual Rights and Responsibilities (IR&R) is considering preparation of a sourcebook on attorneys’ fees under the 1964 Civil Rights Act and its progeny. This sourcebook would be a valuable resource for practitioners. Many lawyers who handle civil rights cases take them pro bono, venturing outside their usual practice areas to do so. Some lawyers and law firms often donate court-awarded legal fees to legal service organizations or other charitable organizations. Other lawyers can take the cases only if there is a prospect of a fee award. In these and other circumstances, the Section’s project will help improve access to justice.

Attorneys attempting to determine when fees may be available face a broad and complex array of statutory provisions, made even more complicated by the overlay of judicial opinions. Statutes providing for awards of attorneys’ fees have proliferated in legislation dealing with individual rights. Fees are available to the prevailing party, for example, under Title II of the Civil Rights Act of 1964 (Act), which deals with claims of discrimination and segregation in public accommodations. Title III covers claims of discrimination in state-owned facilities. It reaffirms that prevailing parties in suits under that Title can win attorneys’ fees against the U.S. government. Title VII, which involves discrimination in employment, likewise allows fees to the prevailing party, including fees of expert witnesses. The Fair Housing Act also gives courts discretion to award attorneys’ fees to prevailing parties. Similarly, statutes dealing with discrimination against the disabled allow awards of attorneys’ fees. The Americans with Disabilities Act (ADA) affords discretion to award such fees to the prevailing party both in litigation and in administrative proceedings.

In 1976 Congress enacted the Civil Rights Attorney’s Fees Awards Act of 1976. That Act was in direct response to Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), which held that only Congress, not the courts, could authorize an exception to the rule allowing recovery of attorneys’ fees only when authorized by statute, rather than at the instance of the court. After the enactment of the 1976 Act, attorneys’ fee awards were “available to virtually all ‘prevailing’ plaintiffs in civil rights cases.” Leading Cases, 115 HARV. L. REV. 457 (2001). The Act applies to suits brought for deprivation of constitutional rights under sections 1981, 1983, and similar provisions. It also covers suits under Title IX, 20 U.S.C. section 1681 et seq., the Religious Freedom Restoration Act of 1993, the Religious Land Use and Institutionalized Persons Act of 2000, and Title VI of the Civil Rights Act of 1964. However, it has been limited in prisoner litigation by the Prisoner Litigation Reform Act of 1995. Most broadly, the Equal Access to Justice Act allows attorneys’ fees in any civil action brought by or against the U.S. government, any agency of the government, or any federal official acting in his or her official capacity.

Not surprisingly, these statutes have generated an enormous amount of litigation. A computer search identified more than 140,000 cases discussing the attorneys’ fees provision in section 1988, not to mention the other provisions. The U.S. Supreme Court has dealt with these issues repeatedly. For example, in the recent decision of Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 121 S. Ct. 1835 (2001), the Court rejected the argument that a plaintiff in a civil rights action could receive fees as a prevailing party where the suit was a “catalyst” resulting in voluntary government action providing the relief sought. The plaintiff, in the Court’s view, had to win a judgment on the merits of a court-ordered consent decree. In those circumstances, fees were available, even if the relief was less robust than could be achieved voluntarily. There are numerous other cases at all levels discussing who is a prevailing party, which can be a difficult question when a plaintiff wins some claims and loses others. Other cases analyze whether and when defendants can win attorneys’ fees. There is also frequent litigation over what constitutes a “reasonable fee” and how to calculate it.

In sum, the proposed sourcebook on attorneys’ fees in civil rights litigation would be useful for those litigating or considering litigating cases involving individual rights. Given the number of statutes and the cases, however, it is a large project. If you are interested in assisting with the project, please contact Tanya Terrell-Collier, the director of IR&R, at 877/222-1800 ext. 1593 or terrellt@staff.abanet.org.

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