Domegan v. Ponte, et al.
Case Date: 10/06/1992
Court: United States Court of Appeals
Docket No: 91-1625
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October 6, 1992 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 91-1625 DENNIS J. DOMEGAN, Plaintiff, Appellee, v. JOSEPH PONTE, ET AL., Defendants, Appellants. _____________________ No. 91-1753 DENNIS J. DOMEGAN, Plaintiff, Appellee, v. JOSEPH PONTE, ET AL., Defendants, Appellants. ____________________ ERRATA SHEET ERRATA SHEET The opinion of this Court issued on August 10, 1992, is amended as follows: Page 50, footnote 38, line 1, should read: "Eighth Amendment" instead of "Fifth Amendment" August 10, 1992 ____________________ August 10, 1992 ____________________ No. 91-1625 No. 91-1625 DENNIS J. DOMEGAN, DENNIS J. DOMEGAN, Plaintiff, Appellee, Plaintiff, Appellee, v. v. JOSEPH PONTE, ET AL., JOSEPH PONTE, ET AL., Defendants, Appellants. Defendants, Appellants. _____________________ _____________________ No. 91-1753 No. 91-1753 DENNIS J. DOMEGAN, DENNIS J. DOMEGAN, Plaintiff, Appellee, Plaintiff, Appellee, v. v. JOSEPH PONTE, ET AL., JOSEPH PONTE, ET AL., Defendants, Appellants. Defendants, Appellants. ____________________ ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge] [Hon. Rya W. Zobel, U.S. District Judge] ___________________ ____________________ ____________________ Before Before Campbell, Circuit Judge, Campbell, Circuit Judge, _____________ Bownes, Senior Circuit Judge, Bownes, Senior Circuit Judge, ____________________ and Cyr, Circuit Judge. and Cyr, Circuit Judge. _____________ ____________________ ____________________ Stephen G. Dietrick, Deputy General Counsel, with whom Nancy Stephen G. Dietrick, Deputy General Counsel, with whom Nancy ____________________ _____ Ankers White, Special Assistant Attorney General, was on brief for Ankers White, Special Assistant Attorney General, was on brief for ____________ appellants defendants. appellants defendants. Paul E. Nemser with whom Paula M. Bagger and Goodwin, Procter & Paul E. Nemser with whom Paula M. Bagger and Goodwin, Procter & ______________ _______________ ___________________ Hoar were on brief for plaintiff appellee. Hoar were on brief for plaintiff appellee. ____ ____________________ ____________________ ____________________ ____________________ 3 3 CYR, Circuit Judge. After former inmate Dennis J. Domegan won CYR, Circuit Judge. _____________ a one dollar damage award in a civil rights action against certain Massachusetts corrections officials, the district court approved an attorney fee award against the defendants in the amount of $41,441.55 under 42 U.S.C. 1988. The defendant officials challenge the fee award primarily on the ground that Domegan cannot be considered a "prevailing party" in light of the results achieved in litigation. With modifications to the amount of the award, we affirm the district court judgment. I I BACKGROUND BACKGROUND __________ On August 15, 1983, while imprisoned at the Massachusetts Correctional Institution at Walpole ("MCI-Walpole"), Domegan lodged a pro se complaint in the United States District Court for ___ __ the District of Massachusetts, alleging civil rights violations under the Eighth and Fourteenth Amendments to the United States Constitution. The complaint stemmed from Domegan's disciplinary placement on the "Alternate Feeding Program" ("AFP") at MCI- Walpole in May and again in July of 1983.1 At that time, each meal served to AFP inmates, including Domegan, consisted entirely ____________________ 1The May placement occurred after Domegan threw his food tray and human waste against the wall outside his cell; in July, he threw his food and tray outside his cell. 4 4 of two cheese sandwiches. The solid steel doors of AFP inmate cells remained closed. The inmate was given no hearing prior to the AFP placement. AFP status was reviewed every five days by the prison official who recommended the particular placement. Domegan remained on AFP for seven and one-half days in May 1983, and for five days in July 1983. During March 1984, the district court appointed Goodwin, Procter & Hoar [hereinafter Procter & Hoar] to represent Domegan. The final amended complaint asserted three causes of action: cruel and unusual punishment (Eighth and Fourteenth Amendments; 42 U.S.C. 1983; M.G.L. c. 12, 11 H,I);2 violation of due _ process (Fourteenth Amendment; 42 U.S.C. 1983; M.G.L. c. 12, 11 H,I); and violation of the Massachusetts Civil Rights Act _ (M.G.L. c. 12, 11 I). The final amended complaint demanded _ declaratory and injunctive relief, compensatory damages totaling $50,000,and$35,000 inpunitivedamagesfromeach ofthetendefendants.3 ____________________ 2Initially, Domegan sought to establish that the AFP was viola- tive of the Eighth Amendment, facially and as applied, but later relinquished the facial claim. The "as applied" claim alleged that the defendant officers and sergeants assigned to the AFP: (i) turned off the electricity to Domegan's cell to prevent him from complying with the AFP regimen for receiving food at meal time; (ii) refused to feed him, knowing that he could not comply with the AFP regimen; and (iii) turned off his water supply. 3The ten defendants named in the final amended complaint were Joseph J. Ponte, Superintendent at MCI-Walpole; Frank Leppert, Administrator of the Department Segregation Unit ("DSU") at MCI- Walpole; Peter Gallagher, Acting DSU Administrator; Sergeants Anthony Silva and James Brooks; and Officers Carl Harrison, Gary Mendes, Christopher Pires, Patrick Smith, and Brian Bissonnette. Three other defendants were named in earlier complaints but were 5 5 Domegan was granted summary judgment on the procedural due process claim. The case proceeded to trial on the remaining claims in March 1989. The jury awarded Domegan $1.00 in "compen- satory" damages on the due process claim, but returned verdicts for all defendants on the remaining Eighth Amendment claims. Judgment was entered in the amount of $1.00 against Ponte, Leppert, and Gallagher.4 Domegan requested attorney fees and costs in the amount of $88,655.16, pursuant to 42 U.S.C. 1988. Although the district court determined that Domegan was a "pre- vailing party" entitled to recover a reasonable attorney fee, it reduced the amount of the award to $41,441.55 in light of the limited success achieved in litigation. The defendants challenge the fee award on several grounds.5 II II ____________________ dropped from the final amended complaint. On November 1, 1983, two and one-half months after Domegan filed his pro se complaint, MCI-Walpole instituted a more varied ___ __ and nutritious menu for AFP inmates. In 1985, MCI-Walpole revised its post-deprivation review procedures, requiring that each AFP inmate's status be reassessed after each meal. On or about October 11, 1988, prior to trial, Domegan was released from state custody, and the claims for injunctive and declaratory relief were not pursued. 4It is not clear why judgment was never entered against the other seven defendants. 5Although judgment was entered only against defendants Ponte, Leppert and Gallagher, the other seven defendants joined the appeal because the attorney fee award ran against "defendants." As Domegan correctly concedes, however, there is no basis for an award against the seven codefendants who were found not liable. Accordingly, we dismiss these seven defendants-appellants. 6 6 DISCUSSION DISCUSSION __________ A. Appellate Jurisdiction A. Appellate Jurisdiction ______________________ The district court "Memorandum and Order" awarding attorney fees was entered on May 24, 1991. A defective notice of appeal (No. 91-1625) was filed on June 24, 1991, naming no appellant except Ponte, and then only in the following caption: "Domegan v. Ponte, et al." See Torres v. Oakland Scavenger Co., 487 U.S. ___ ______ _____________________ 312, 314-15, 318 (1988) (use of "et al." does not satisfy Fed. R. App. P. 3(c) requirement that notice of appeal specify parties appealing); Pontarelli v. Stone, 930 F.2d 104, 108-09 (1st Cir. __________ _____ 1991) (same). In response to our order to show cause why the appeal ought not be dismissed except as to Ponte, on July 16 a motion for permission to file an amended notice of appeal was filed by defendants' counsel with the district court. See Fed. ___ R. App. P. 4(a)(5). The district court granted the motion ex __ parte on the following day. But see id. ("Notice of any such _____ ___ ___ ___ motion which is filed after the expiration of the prescribed time shall be given to the other parties in accordance with local rules."). See also D. Mass. R. 7.1(a)(2),(b),(e). An amended ___ ____ notice of appeal (No. 91-1753), naming all ten appellants, was promptly filed. Domegan contends that the ex parte district court order, __ _____ permitting appellants to file a corrected notice of appeal after the expiration of the original appeal period, was ineffective 7 7 since the fourteen-day notice required by Local Rule 7.1 was not served. See Fed. R. App. P. 4(a)(5); D. Mass. R. 7.1(a)(2), (b), ___ (e); see also, e.g., Hable v. Pairolero, 915 F.2d 394, 395 (8th ___ ____ ____ _____ _________ Cir. 1990) (requiring notice of rule 4(a)(5) motion); Truett v. ______ Johns-Manville Sales Corp., 725 F.2d 1301, 1302 (11th Cir. 1984) __________________________ (same). Domegan also challenges the sufficiency of the showing of "good cause" or "excusable neglect" required under Fed. R. App. P. 4(a)(5). See, e.g., Pontarelli, 930 F.2d at 109-112. We ___ ____ __________ need not address Domegan's contentions, however, as the initial notice of appeal was premature. The district court "Memorandum and Order," entered May 24, did not satisfy the "separate document" rule. See Fed. R. Civ. P. 58 ___ advisory committee note (1963) ("The amended rule . . . requir[e- s] that there be a judgment set out on a separate document distinct from any opinion or memorandum which provides the ________ ____ ___ _______ __ __________ basis for the entry of judgment.") (emphasis added); Fiore v. _____ Washington County Community Mental Health Ctr., 960 F.2d 229, _________________________________________________ 234-35 (1st Cir. 1992) (en banc) (discussing generally the nature of a separate document); Smith v. Massachusetts Dep't of Correc- _____ ______________________________ tion, 936 F.2d 1390, 1393-94 (1st Cir. 1991) (memorandum and ____ order does not constitute "separate document"); In re Smith ____________ Corset Shops, Inc., 696 F.2d 971, 975 (1st Cir. 1982) (same, ___________________ applying analogous Bankruptcy Rule). As the order appealed from was not a "final judgment," see Fed. R. Civ. P. 54(a), 58, the ___ appeal period never commenced running prior to the filing of the 8 8 corrected notice of appeal. Fed. R. App. P. 4(a)(1), (7); Smith, _____ 936 F.2d at 1394; Scola v. Boat Frances, R., Inc., 618 F.2d 147, _____ ______________________ 151 (1st Cir. 1980); see also Bankers Trust Co. v. Mallis, 435 ___ ____ __________________ ______ U.S. 381, 384-86 (1978) (per curiam) (purpose of "separate document" rule is to promote greater predictability as to when time for appeal begins to run); Fiore, 960 F.2d at 233 (same).6 _____ Although appellants at all times treated the May 24 "Memorandum and Order" as an appealable order, the "separate document" rule is to be strictly applied as concerns the commencement of the appeal period. See United States v. Indrelunas, 411 U.S. 216, ___ ______________ __________ 221-22 (1973) (per curiam) (applying rule 58 mechanically not- withstanding previous aborted appeal by same appellant within appeal period); Fiore, 960 F.2d at 235 (discussing technicality _____ of rule 58); Gregson & Assocs. Architects v. Government of the _____________________________ _________________ V.I., 675 F.2d 589, 592-93 (3d Cir. 1982) (Indrelunas applied ____ __________ despite both parties' treatment of memorandum opinion as appeal- able order); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d ________ _____________________________ 683, 688-90 (4th Cir. 1978) ("nor are we free to penalize plain- tiffs . . . by binding them to their erroneous assertion that judgments" had been entered); see also Fiore, 960 F.2d at 237 ___ ____ _____ ____________________ 6We raise the "separate document" issue sua sponte, as it is ___ ______ intertwined with Domegan's jurisdictional challenge. See, e.g., ___ ____ Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 688-89 ________ _____________________________ (4th Cir. 1978) (raising "separate document" issue sua sponte); ___ ______ see also Parisie v. Greer, 705 F.2d 882, 890-91 (7th Cir.) ___ ____ _______ _____ (Eschbach, J.) (discussing duty of court to raise "separate document" issue sua sponte), cert. denied, 464 U.S. 918, and ___ ______ _____ ______ ___ cert. denied, 464 U.S. 950 (1983). _____ ______ 9 9 (emphasizing that the "separate document" requirement "should always be interpreted 'to prevent loss of the right to appeal, not to facilitate loss'") (quoting Bankers Trust, 435 U.S. at ______________ 386); Willhauck v. Halpin, 919 F.2d 788, 792 (1st Cir. 1990) _________ ______ (same); 9 Moore's Federal Practice 58.02.1[2], at 58-20 to 21. ________________________ Nevertheless, a notice of appeal deemed premature due to noncom- pliance with the "separate document" rule does not deprive the appellate court of subject matter jurisdiction, Bankers Trust, _____________ 435 U.S. at 384, 385; see also Smith, 936 F.2d at 1394 (applying ___ ____ _____ Bankers Trust), and the appeal may proceed in the normal course _____________ where the court of appeals determines that the "separate docu- ment" requirement was waived by the parties. Bankers Trust, 435 _____________ U.S. at 384-86; Smith, 936 F.2d at 1394. _____ The district court treated its May 24 "Memorandum and Order" as an appealable order; it was duly docketed; and no party chal- lenged appellate jurisdiction for failure to comply with the "separate document" requirement. See Smith, 936 F.2d at 1394 ___ _____ (finding waiver); see also Bankers Trust, 435 U.S. at 387-88 ___ ____ _____________ (considering same factors). Compare Fiore, 960 F.2d at 232, 237. _______ _____ All parties to the present appeal consistently treated the May 24 "Memorandum and Order" as a final judgment and there is no suggestion that unfair prejudice would be occasioned any party by our assertion of appellate jurisdiction, without remanding for formal compliance with the "separate document" requirement. See ___ Smith, 936 F.2d at 1394 (assertion of appellate jurisdiction _____ 10 10 proper, as parties waived "separate document" requirement and would not be prejudiced). Moreover, dismissal of the second notice of appeal in these circumstances, solely to permit compli- ance with the "separate document" rule, would force "[w]heels [to] spin for no practical purpose." Bankers Trust, 435 U.S. at _____________ 385; Smith, 936 F.2d at 1394 ("We will not needlessly 'force the _____ parties round and round the mulberry bush' . . . ." (quoting Jusino v. Zayas, 875 F.2d 986, 989-90 (1st Cir. 1989)). ______ _____ B. The Merits B. The Merits __________ 1. "Prevailing Party" 1. "Prevailing Party" ________________ The principal focus of appellants' discontent with the fee allowance in the instant case is that the district court deter- mined that Domegan was a "prevailing party" even though he obtained only a one dollar damage award. Absent "special circum- stances" which would render an award unjust, ordinarily a civil rights plaintiff who qualifies as a "prevailing party" is enti- tled to a reasonable award of attorney fees under 42 U.S.C. 1988.7 Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); de Jesus _______ _________ ________ v. Banco Popular de Puerto Rico, 918 F.2d 232, 234 (1st Cir. ______________________________ 1990); Stefan v. Laurenitis, 889 F.2d 363, 370 (1st Cir. 1989). ______ __________ ____________________ 7Section 1988 provides, in part: "In any action or proceeding to enforce a provision of section[] . . . 1983 . . ., the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. 1988. 11 11 A prevailing party is one who "has succeeded on 'any signifi- cant issue in litigation which achieve[d] some of the benefit the [plaintiff] sought in bringing suit'. . . ." Texas State Teach- __________________ ers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 __________ __________________________ (1989) [hereinafter Texas Teachers] (quoting Nadeau v. Helgemoe, ______________ ______ ________ 581 F.2d 275, 278-79 (1st Cir. 1978)). "[A]t a minimum . . . the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Id. at 792. Moreover, even under this "generous ___ formulation," as the Court stated in Texas Teachers, the plain- ______________ tiff cannot qualify as a "prevailing party" if his "success on a legal claim can be characterized as purely technical or de __ minimis . . . ." Id. "The touchstone of the prevailing party _______ ___ inquiry must be the material alteration of the legal relationship ___________________ of the parties in a manner which Congress sought to promote in _____ ________ ______ __ _______ __ the fee statute." Id. at 792-93 (emphasis added). ___ ___ _______ ___ The district court determination that Domegan met the "prevailing party" test is subject to de novo review. See __ ____ ___ Romberg v. Nichols, 953 F.2d 1152, 1156 (9th Cir. 1992) ("We must _______ _______ reverse . . . if the district court applied incorrect legal standards to reach [the factual findings underlying its "prevail- ing party" determination]."); Guglietti v. Secretary of Health & _________ _____________________ Human Services, 900 F.2d 397, 399 (1st Cir. 1990) (where normal ______________ deference due EAJA fee award could not be accorded because district court misapprehended the record, court of appeals would 12 12 decide case, rather than remand, as the facts were not in genuine dispute and the "prevailing party" question is "largely one of law . . ."). But cf. McDonald v. Secretary of Health & Human ___ ___ ________ ____________________________ Services, 884 F.2d 1468, 1474 (1st Cir. 1989) ("abuse of discre- ________ tion" standard governs review of "prevailing party" determination in EAJA fee award cases).8 Although Domegan met with no success on the Eighth Amendment and state law claims, he obtained a favorable verdict on the ____________________ 8McDonald broadly established an "abuse of discretion" standard ________ of review for all "prevailing party" determinations in EAJA cases. As subsequently demonstrated in Guglietti, however, _________ certain aspects of the "prevailing party" determination in a particular case may turn solely on the proper legal standard, making de novo review appropriate. The "prevailing party" __ ____ determination in the present case does not entail any of the considerations which led us to apply a deferential standard of review in McDonald. Nor does it involve fact-based inquiries ________ like those we found appropriate for deferential review in Langton _______ v. Johnston, 928 F.2d 1206, 1225 (1st Cir. 1991) (district court ________ assessment of causation and materiality elements in the "cata- lyst" test) ( 1988 award). The only question in the present case is whether a judgment for one dollar in damages entitles Domegan to "prevailing party" status. The facts are not in dispute, see Guglietti, 900 F.2d at 399, and application of the ___ _________ "prevailing party" test presents a pure question of law warrant- ing plenary review. Moreover, as we have explained, the district court's discretion to deny a fee award to a "prevailing party" under section 1988 is narrowly circumscribed: Despite the explicit grant of discretion in section 1988, it is well-established [sic] that a court may not deny an award ___ ___ of attorney's fees to a prevailing civil rights plaintiff in the absence of special circumstances rendering the award unjust, and this court requires findings of fact and conclu- sions of law identifying the special circumstances and ex- plaining why an award would be inappropriate. de Jesus, 918 F.2d at 234 (citations omitted) (emphasis added). ________ 13 13 procedural due process claim, a "significant issue in litiga- tion." See Langton v. Johnston, 928 F.2d 1206, 1226 (1st Cir. ___ _______ ________ 1991) (assessing significance "given the scope and tenor of the litigation as a whole").9 Appellants insist, nonetheless, that the final judgment cannot have had any significant effect on their legal relationship with Domegan, and question how a one dollar damage award can be considered other than de minimis __ _______ success. Although one dollar most assuredly is a nominal amount, the final judgment nonetheless represented "some" of the benefit ____________________ 9Appellants attempt to demonstrate the de minimis nature of __ _______ Domegan's one dollar "compensatory" damage award on the procedur- al due process claim against three defendants by pointing out that he asserted 42 "defendant/counts" at the "height" of the litigation. The same sort of argument was made by the defendants in Rogers v. Okin, 821 F.2d 22 (1st Cir. 1987), cert. denied, 484 ______ ____ ____ ______ U.S. 1010 (1988). In rejecting their contention, this court stated that the defendants had "adopted the kind of 'mathematical approach' criticized in [Hensley v. Eckerhart, 461 U.S. 424, 435- _______ _________ 36 n.11 (1983)] . . . ." Id. at 25. Along the lines explained ___ in Rogers, "prevailing party" success cannot be measured by an ______ arithmetic comparison of the claims and defendants joined in the complaint with the number of claims and defendants named in the final judgment. Id. (rejecting defendants' attempt to minimize ___ plaintiffs' success by claiming victory on "no fewer than 224" issues); see Hensley, 461 U.S. at 435-36 n.11 (mathematical ___ _______ comparison of the total number of issues in a case with those actually won "provides little aid in determining what is a reasonable fee in light of all the relevant factors"), quoted in ______ __ Rogers, 821 F.2d at 25. Domegan's procedural due process claim ______ doubtless represented a significant constitutional claim in qualitative terms. We cannot treat the quantitative dimensions of the relief obtained on the due process claim as dispositive of the allowability, vel non, of a 1988 fee award, as distin- ___ ___ guished from the reasonableness of the amount awarded. Texas _____ Teachers, 489 U.S. at 790, 793 ("the degree of the plaintiff's ________ overall success" goes to the reasonableness, not the allowability of the award); Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir. ______ ________ 1978) (some fee award appropriate where success is but partially ____ attributable to plaintiff's lawsuit). 14 14 sought in the litigation; namely, an enforceable judgment against the defendant officials who deprived the plaintiff of the consti- tutional right to due process of law. We are unable to agree that an enforceable judgment for nominal damages redressing significant procedural due process violations cannot qualify the plaintiff for "prevailing party" status.10 a. Baseline Criteria a. Baseline Criteria _________________ Prior to Texas Teachers at least, attorney fees were not _______________ withheld under section 1988 simply because the plaintiff merely obtained a nominal damage award. Perez v. University of Puerto _____ _____________________ ____________________ 10Similarly, the Supreme Court has never intimated that a valid final judgment declaring a violation of a claimant's civil rights constituted "purely technical or de minimis" success simply __ _______ because no compensatory damage award or injunctive relief was obtained. Rather, presumably in recognition of the fact that the wrong occasioned by a procedural due process violation often is not susceptible to monetary measurement, the Court has stated that plaintiffs who establish a procedural due process violation "nevertheless will be entitled to recover nominal damages not to ________ exceed one dollar . . . ." Carey v. Piphus, 435 U.S. 247, 267 _____ ______ (1978) (emphasis added); Maldonado Santiago v. Velazquez Garcia, __________________ _________________ 821 F.2d 822, 829 (1st Cir. 1987). (citing Carey). See Memphis _____ ___ _______ Community Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11 (1986) ____________________ ________ (Nominal damages "are the appropriate means of 'vindicating' rights whose deprivation has not caused actual, provable inju- ry"); see also, e.g., Fassett by and through Fassett v. Haeckel, ___ ____ ____ ______________________________ _______ 936 F.2d 118, 121 (2d Cir. 1991) (Fourth Amendment violation); Floyd v. Laws, 929 F.2d 1390, 1401-03 (9th Cir. 1991) (violation _____ ____ of "constitutional rights"); Cowans v. Wyrick, 862 F.2d 697, 699, ______ ______ 700 (8th Cir. 1988) (Eighth Amendment violation); Farrar v. Cain, ______ ____ 756 F.2d 1148, 1152 (5th Cir. 1985) (violation of "civil rights"); Kincaid v. Rusk, 670 F.2d 737, 746 (7th Cir. 1982) _______ ____ (violation of due process and First Amendment); McGhee v. Draper, ______ ______ 639 F.2d 639, 646 (10th Cir. 1981) (due process violation). But ___ cf. Ganey v. Edwards, 759 F.2d 337, 339 (4th Cir. 1985) (award of ___ _____ _______ nominal damages left to jury). 15 15 Rico, 600 F.2d 1, 2 (1st Cir. 1979) ("Fees may not be denied ____ simply because only nominal damages are awarded."); Ganey v. _____ Edwards, 759 F.2d 337, 339-40 (4th Cir. 1985) (liability determi- _______ nation need not even be accompanied by nominal damage award); Burt v. Abel, 585 F.2d 613, 618 (4th Cir. 1978) (nominal damage ____ ____ award sufficient); Basiardanes v. City of Galveston, 682 F.2d ___________ __________________ 1203, 1220 (5th Cir. 1982) (judgment for nominal damages may warrant fee award); Skoda v. Fontani, 646 F.2d 1193, 1194 (7th _____ _______ Cir. 1981) (per curiam) ($1.00 judgment satisfies "prevailing party" requirement); Hogue v. Clinton, 791 F.2d 1318, 1323 (8th _____ _______ Cir.) (absent proof of actual injury, plaintiff should be granted nominal damages and attorney fees), cert. denied, 479 U.S. 1008 _____ ______ (1986); Scofield v. City of Hillsborough, 862 F.2d 759, 766 (9th ________ ____________________ Cir. 1988) (attorney fees allowable solely on basis of nominal damage award); see Derr v. Gulf Oil Corp., 796 F.2d 340, 344 ___ ____ _______________ (10th Cir. 1986) (Title VII case citing Nephew v. City of Aurora, ______ ______________ 766 F.2d 1464, 1466 (10th Cir. 1985)), a 1988 case subsequently reversed on other grounds, 830 F.2d 1547 (10th Cir. 1987) (en banc); nominal damage award entitled plaintiff to attorney fees); Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. ______ ______________________ 1987) (Title VII case; nominal damage award confers "prevailing party" status). But compare Huntley v. Community Sch. Bd., 579 ___ _______ _______ ___________________ F.2d 738, 742 (2d Cir. 1978) (district court did not abuse ________ _____ discretion in determining that $100 damage award on procedural due process claim amounted, at most, to "moral victory") with ____ 16 16 Milwe v. Cavuoto, 653 F.2d 80, 84 (2d Cir. 1981) (nominal damage _____ _______ award on constitutional claim stemming from official misconduct "sufficient to support an award of fees") (alternate holding). Much as the Fifth Circuit recently pointed out, however, in Estate of Farrar v. Cain, 941 F.2d 1311, 1317 (5th Cir. 1991), ________________ ____ cert. granted sub nom. Farrar v. Hobby, 112 S. Ct. 1159 (1992), ____ _______ ___ ____ ______ _____ all of the cases cited above, except Scofield, antedate Texas ________ _____ Teachers as well as Hewitt v. Helms, 482 U.S. 755 (1987), and ________ ______ _____ Rhodes v. Stewart, 488 U.S. 1 (1988) (Per Curiam). Furthermore, ______ _______ the courts of appeals which have been presented with the issue in the wake of Texas Teachers have drifted apart.11 Compare Rom- ______________ _______ ____ berg v. Nichols, 953 F.2d 1152, 1159 (9th Cir. 1992) ("a nominal ____ _______ damages award does not a nominal victory make"); Fassett by and _______________ through Fassett v. Haeckel, 936 F.2d 118, 122 (2d Cir. 1991) (fee _______________ _______ award appropriate where nominal damages are recovered for depri- vation of an absolute constitutional right) (citing Ruggiero v. ________ Krzeminski, 928 F.2d 558, 564 (2d Cir. 1991)) with Estate of __________ ____ _________ Farrar, 941 F.2d at 1315-17 (nominal damage award represents de ______ __ minimis success where sole purpose of lawsuit was recovery of _______ ____ damages); Spencer v. General Electric Co., 894 F.2d 651, 662 (4th _______ ____________________ ____________________ 11The Fourth and Fifth Circuits have concluded, contrary to their pre-Texas Teachers precedent, that a nominal damage award alone ______________ cannot confer "prevailing party" status. See Denny v. Hinton, ___ _____ ______ 131 F.R.D. 659, 662-63 (M.D.N.C. 1990), aff'd mem., Denny v. _____ ____ _____ Elliott, 937 F.2d 602 (4th Cir.), and aff'd mem. Lawrence v. _______ ___ _____ ___ ________ Hinton, 937 F.2d 603 (4th Cir. 1991); Estate of Farrar, 941 F.2d ______ ________________ at 1315 (where sole purpose of lawsuit was to recover damages). ____ 17 17 Cir. 1990) (dicta) (indicating that $1.00 judgment might con- stitute de minimis success absent any other favorable litigation __ _______ result); Denny v. Hinton, 131 F.R.D. 659, 662-63 (M.D.N.C. 1990) _____ ______ (nominal damage award constitutes de minimis success), aff'd __ _______ _____ mem., Denny v. Elliott, 937 F.2d 602 (4th Cir. 1991), and Law- ____ _____ _______ ___ ____ rence v. Hinton, 937 F.2d 603 (4th Cir. 1991). See also Brewer _____ ______ ___ ____ ______ v. Chauvin, 938 F.2d 860, 864 (8th Cir. 1991) (citing Hogue v. _______ _____ Clinton, 791 F.2d 1318 (8th Cir. 1986)). _______ As Texas Teachers explains, in order for a claimant to qualify ______________ for "prevailing party" status the litigation must achieve, at a minimum, a "material alteration" in the legal relationship between the parties. Texas Teachers, 489 U.S. at 792. The Court ______________ in Texas Teachers limned its "material alteration" standard, in _______________ broad outline, through reference to two earlier cases, see id. ___ __ (discussing Hewitt v. Helms, 482 U.S. 755 (1987), and Rhodes v. ______ _____ ______ Stewart, 488 U.S. 1 (1988) (Per Curiam)), to which we now turn. _______ In Hewitt v. Helms, 482 U.S. 755 (1987), a prison inmate ______ _____ commenced a section 1983 action for damages, as well as declara- tory and injunctive relief, alleging due process violations by prison officials. Helms was released on parole prior to any decision by the district court, and the district court later entered summary judgment against Helms. The Third Circuit _______ reversed on the ground that Helms had been denied due process. The court of appeals ordered the case remanded for entry of judgment in favor of Helms, except as to any defendant determined 18 18 entitled to qualified immunity. Prior to the actual remand to the district court, however, the defendant prison officials secured a favorable Supreme Court decision dismissing one of Helms' claims. After remand from the Supreme Court, the Third Circuit reaffirmed its earlier holding on the other due process claim and again remanded to the district court on the issue of qualified immunity. On remand, Helms did not pursue injunctive relief. The district court once again entered summary judgment against Helms, on the ground that the defendants were immune from liability for damages, and denied a fee award under section 1988. The Third Circuit again reversed, on the ground that its earlier interlocutory ruling that Helms' due process rights had been violated constituted significant success. The Supreme Court disagreed. Justice Scalia pointed out that Helms had obtained no relief whatever on any claim in litigation no judgment, no damages, no injunctive relief, and no declara- tory relief. "The most that he obtained was an interlocutory _____________ ruling that his complaint should not have been dismissed for failure to state a constitutional claim." Hewitt, 482 U.S. at ______ 760 (emphasis added). The Supreme Court refused to equate the Third Circuit ruling with declaratory relief, since the inter- locutory ruling could not conceivably alter the legal relation- _____ ___ 19 19 ship between the parties12 in the face of a final judgment "against the plaintiff . . ., " id. at 763 (emphasis added), and _______ ___ _________ ___ the litigation resulted in no other "relief" which "affect[ed] ______ __ the behavior of the defendant[s] towards the plaintiff," id. at ___ ________ __ ___ _________ _ _______ ___ _________ ___ 761 (emphasis in original). We are not persuaded that Hewitt can be considered analogous ______ authority for withholding "prevailing party" status on the ground that a final judgment for nominal damages is no different than the Third Circuit interlocutory ruling declaring a violation of Helms' due process rights. Moreover, as the Court clearly explained in Hewitt: ______ Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail. See Hanrahan v. Hampton, ___ ________ _______ 446 U.S. 754, 757 (1980). Helms obtained no relief. Because of the defendants' official immunity he received no damages award. No injunction or declaratory judgment was entered in his favor. Nor did Helms obtain relief without benefit of a formal judgment for example, through a consent decree or settlement. See Maher v. Gagne, 448 U.S. 122, 129 (1980). ___ _____ _____ The most that he obtained was an interlocutory ruling that his complaint should not have been dismissed for failure to state a constitutional claim. That is not the stuff of which legal victories are made. Cf. Hanrahan, supra, at 758-59. __ ________ _____ ____________________ 12It is to this same discussion in Hewitt, 482 U.S. at 760-61, ______ that the Court cites in Texas Teachers, 489 U.S. at 792, to ______________ explicate its threshold standard for "prevailing party" status under 42 U.S.C. 1988. We consider it no happenstance that Texas Teachers and Hewitt both cite to Hanrahan v. Hampton, 446 ______________ ______ ________ _______ U.S. 754 (1980) (Per Curiam), and its seminal discussion of the threshold test for "prevailing party" status. See infra at note ___ _____ 13. 20 20 482 U.S. at 760.13 ____________________ 13In Hanrahan, 446 U.S. at 756-57, the Supreme Court reversed a ________ 1988 fee award made pendente lite to appellate counsel, on the ________ ____ ground that all rulings favorable to the plaintiffs were inter- locutory and procedural. The Court noted that it seems clearly to have been the intent of Congress to permit such an interlocutory award only to a party who has established his entitlement to some relief on the merits of ___________ ___ ___________ __ ____ ______ __ ___ ______ __ his claims, either in the trial court or on appeal. The ___ ______ congressional Committee Reports described what were consid- ered to be appropriate circumstances for such an award by reference to two cases Bradley v. Richmond School Board, _______ ______________________ 416 U.S. 696 (1974), and Mills v. Electric Auto-Lite Co., 396 _____ ______________________ U.S. 375 (1970). S. Rep. No. 94-1011, [p.] 5 [(1976)]; H.R. Rep. No. 94-1558, [p.] 8 [(1976)]. In each of those cases the party to whom fees were awarded had established the ___ liability of the opposing party, although final remedial _________ __ ___ ________ _____ ________ orders had not been entered. Id. at 757 (emphasis added). Texas Teachers, 489 U.S. at 790-92, ___ ______________ reaffirms this essential element of the "prevailing party" test, which was discussed not only in Hanrahan, 446 U.S. at 757, but in ________ Hewitt, 482 U.S. at 760, as well. ______ Furthermore, as Hanrahan indicates, in Mills v. Electric Auto- ________ _____ ______________ Lite Co., 396 U.S. 375 (1970), the Court deemed an interim fee ________ _______ award appropriate once liability had been determined, even though _________ "the question of relief [would] await further proceedings . . . .;" that is, even though no order directing relief had yet been granted. It is particularly noteworthy, we believe, that Mills _____ is cited with approval in the companion Senate Report accompany- ing 1988, as well as in the House Report, since the latest Supreme Court pronouncement on the subject states that "[t]he touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner __ _ ______ which Congress sought to promote in the fee statute." Texas _____ ________ ______ __ _______ __ ___ ___ _______ _____ Teachers, 489 U.S. at 793 (emphasis added). Of course, the ________ Hewitt citation to Hanrahan illuminates the reason Helms could ______ ________ not possibly have been granted "prevailing party" status, since ________ he never established entitlement to any relief. _____ ___________ Finally, the Supreme Court observed in Hanrahan: ________ It seems apparent from these passages that Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. For only in that event has there been a determination of the _____________ 'substantial rights of the parties,' which Congress deter- 21 21 The Fifth Circuit recently vacated a section 1988 fee award to plaintiffs whose only relief on the merits of their claims was a judgment for nominal damages, stressing "the principles set forth in [Hewitt] and applied in Rhodes [v. Stewart] . . . ." Estate ______ ______ _______ ______ of Farrar v. Cain, 941 F.2d at 1311, 1317 (5th Cir. 1991), cert. _________ ____ ____ granted sub nom., Farrar v. Hobby, 112 S. Ct. 1159 (1992). With _______ ___ ____ ______ _____ respect, and recognizing the closeness of the question, we would ascribe a somewhat different intendment to the principles enunci- ated in Hewitt and applied in Rhodes; that is, as not precluding ______ ______ "prevailing party" status for the claimant who obtains sufficient relief to effect a material alteration in the legal relationship out of which the claim for relief arose. In other words, we think the principles enunciated in Hewitt portend no significant ______ departure from earlier Supreme Court criteria for determining "prevailing party" status on the part of a plaintiff who obtains an enforceable judgment for nominal damages on a significant constitutional claim.14 ____________________ mined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney. Hanrahan, 446 U.S. at 757-58 (emphasis added) (quoting H.R. No. ________ 94-1558, p. 8 (1976)). 14Prior to Hewitt, the Court held that "liability on the merits ______ _________ and responsibility for fees go hand in hand; where a defendant has not been prevailed against, ei |