The Civil Rights Attorney's Fees Awards Act of 1976 (Act) permits the award of a reasonable attorney's fee to the "prevailing party" as part of the taxable costs in a suit brought under any of several specified civil rights statutes. Respondents brought suit under certain of those statutes, alleging that their constitutional rights had been violated by petitioners, and seeking damages. The District Court directed verdicts for petitioners, but the Court of Appeals reversed and remanded for a new trial, and also awarded to respondents their costs on appeal, including attorney's fees which it believed to be authorized by the Act.
Respondents were not "prevailing" parties in the sense intended by the Act. While Congress contemplated the award of fees pendente lite in some cases, it intended to permit such an interlocutory award only when a party has prevailed on the merits of at least some of his claims, either in the trial court or on appeal. Respondents have not prevailed on the merits of any of their claims, since the Court of Appeals held only that they were entitled to a trial of their cause. Nor may they fairly be said to have "prevailed" by reason of the Court of Appeals' other interlocutory dispositions that affected only the extent of discovery, since such determinations might affect the disposition on the merits, but were themselves not matters on which a party could "prevail" for purposes of shifting his counsel fees to the opposing party under the Act.
Certiorari granted in part; 600 F.2d 600, reversed in part.
[ Footnote * ] Together with No. 79-914, Johnson et al. v. Hampton et al., also on certiorari to the same court.
In the Civil Rights Attorney's Fees Awards Act of 1976, Congress amended 42 U.S.C. 1988 to permit the award of a reasonable attorney's fee to the "prevailing party" as part of the taxable costs in a suit brought under any of several specified civil rights statutes. The respondents brought suit [446 U.S. 754, 755] under three of those statutes in the United States District Court for the Northern District of Illinois, alleging that their constitutional rights had been violated by the petitioners, and seeking money damages from them. 1 The District Court directed verdicts for the petitioners, but the Court of Appeals reversed and remanded the case to the District Court for a new trial, 600 F.2d 600. The Court of Appeals also awarded to the respondents their costs on appeal, including attorney's fees which it believed to be authorized by 1988. Id., at 643-644. 2
The final sentence of 1988, as amended, provides as follows:
The legislative history of the Civil Rights Attorney's Fees Awards Act of 1976 indicates that a person may in some circumstances be a "prevailing party" without having obtained a [446 U.S. 754, 757] favorable "final judgment following a full trial on the merits," H. R. Rep. No. 94-1558, p. 7 (1976). See also S. Rep. No. 94-1011, p. 5 (1976). Thus for example, "parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief," ibid. See also H. R. Rep. No. 94-1558, supra, at 7, and cases cited; Dawson v. Pastrick, 600 F.2d 70, 78 (CA7 1979); Nadeau v. Helgemoe, 581 F.2d 275, 279-281 (CA1 1978).
It is evident also that Congress contemplated the award of fees pendente lite in some cases. S. Rep. No. 94-1011, supra, at 5; H. R. Rep. No. 94-1558, supra, at 7-8. But 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 considered 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, supra, at 5; H. R. Rep. No. 94-1558, supra, at 8. 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. The House Committee Report, moreover, approved the standard suggested by this Court in Bradley, that "`the entry of any order that determines substantial rights of the parties may be an appropriate occasion upon which to consider the propriety of an award of counsel fees. . .,'" H. R. Rep. No. 94-1558, supra, at 8, quoting Bradley v. Richmond School Board, supra, at 723, n. 28. Similarly, the Senate Committee Report explained that the award of counsel fees pendente lite would be "especially appropriate where a party has prevailed on an important matter in the course of litigation, even when he ultimately does not prevail on all issues." S. Rep. No. 94-1011, supra, at 5 (emphasis added). It seems apparent from these passages [446 U.S. 754, 758] 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 determined 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. 4
The respondents have of course not prevailed on the merits of any of their claims. The Court of Appeals held only that the respondents were entitled to a trial of their cause. 5 As a practical matter they are in a position no different from that [446 U.S. 754, 759] they would have occupied if they had simply defeated the defendants' motion for a directed verdict in the trial court. The jury may or may not decide some or all of the issues in favor of the respondents. If the jury should not do so on remand in these cases, it could not seriously be contended that the respondents had prevailed. See Swietlowich v. Bucks County, 620 F.2d 33, 34 (CA3 1980). Nor may they fairly be said to have "prevailed" by reason of the Court of Appeals' other interlocutory dispositions, which affected only the extent of discovery. As is true of other procedural or evidentiary rulings, these determinations may affect the disposition on the merits, but were themselves not matters on which a party could "prevail" for purposes of shifting his counsel fees to the opposing party under 1988. See Bly v. McLeod, 605 F.2d 134, 137 (CA4 1979).
The motion of Fraternal Order of Police of the State of Illinois in case No. 79-912 for leave to file a brief, as amicus curiae, is granted.
The respondents' motions for leave to proceed in forma pauperis are granted, the petitions for certiorari are granted, limited to the question of the propriety of the award of attorney's fees by the Court of Appeals, and the judgment is reversed insofar as it awarded attorney's fees to the respondents. In all other respects, the petitions for certiorari are denied.
The respondents based their claims on 42 U.S.C. 1983, 1985 (3) (1976 ed., Supp. II), and 1986, and on provisions of the Constitution. They also alleged various causes of action under state law.
[ Footnote 2 ] In an unpublished supplemental opinion issued on December 12, 1979 (as amended December 21, 1979), fixing the amount of the fee award, the Court of Appeals reiterated its conclusion that the respondents were "prevailing parties" within the meaning of 42 U.S.C. 1988.
[ Footnote 3 ] The Court of Appeals recognized that the respondents had not "prevailed" in the District Court, and for that reason limited the award of counsel fees to those incurred by the respondents in the course of the appeal. 600 F.2d 600, 643-644.
[ Footnote 4 ] The provision for counsel fees in 1988 was patterned upon the attorney's fees provisions contained in Titles II and VII of the Civil Rights Act of 1964, 42 U.S.C. 2000a-3 (b) and 2000e-5 (k), and 402 of the Voting Rights Act Amendments of 1975, 42 U.S.C. 1973l (e). S. Rep. No. 94-1011, p. 2 (1976); H. R. Rep. No. 94-1558, p. 5 (1976). Those provisions have been construed by the Courts of Appeals to permit the award of counsel fees only to a party who has prevailed on the merits of a claim. See Bly v. McLeod, 605 F.2d 134, 137 (CA4 1979) (Voting Rights Act); Chinese for Affirmative Action v. Leguennec, 580 F.2d 1006, 1009 (CA9 1978) (same); Grubbs v. Butz, 179 U.S. App. D.C. 18, 20-21, 548 F.2d 973, 975-976 (1976) (Title VII); Sperling v. United States, 515 F.2d 465, 485 (CA3 1975) (same). See also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418 (1978) ("[W]hen a district court awards counsel fees [under the Civil Rights Act of 1964] to a prevailing plaintiff, it is awarding them against a violator of federal law"). But cf. Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (CA9 1974).
In the cases cited by the Court of Appeals to justify the award of counsel fees in these cases, those to whom fees were awarded had prevailed on the merits of at least some of their claims. See Davis v. Murphy, 587 F.2d 362, 363-364 (CA7 1978); Nadeau v. Helgemoe, 581 F.2d 275, 279-281 (CA1 1978); Wharton v. Knefel, 562 F.2d 550, 556 (CA8 1977).
[ Footnote 5 ] The Court of Appeals stated that, in reversing the directed verdicts, it was "not passing on the ultimate validity of [the respondents'] claims," 600 F.2d, at 621, n. 20. Indeed, Chief Judge Fairchild emphasized in his concurring opinion that the court's use of the phrase "`prima facie' case" in referring to the evidence adduced by the respondents should not be taken to mean that at "any stage of this case . . . the evidence compelled a verdict for [the respondents] unless rebutted." Id., at 648.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in part and dissenting in part.
I join the Court's opinion insofar as it reverses the award of attorney's fees entered by the Court of Appeals for the Seventh Circuit. As I would grant the petition filed by the [446 U.S. 754, 760] federal defendants in its entirety, I dissent from the denial of certiorari in No. 79-914. 1
This civil litigation arose in the aftermath of a 1969 police raid on a Chicago apartment occupied by nine members of the Black Panther Party, two of whom were killed. The surviving occupants of the apartment and the legal representatives of the deceased Black Panthers filed four actions for damages, now consolidated, against 28 state and federal law enforcement officials. The complaints allege numerous violations of constitutional rights. In particular, the plaintiffs claim that three agents assigned to the Federal Bureau of Investigation's Chicago office and an informant working with them (the federal defendants) conspired with state officers to carry out the operation, to conceal its allegedly sinister nature, and to harass the plaintiffs with unfounded prosecutions.
The jury trial lasted 18 months, generating a 37,000-page transcript and masses of documentary evidence. At the close of the plaintiffs' case, some 16 months after trial began, the District Court granted directed verdicts in favor of the federal and most of the state defendants. Trial continued as to the police officers who actually participated in the apartment incident. Ultimately, the jury deadlocked and the District Court entered a final judgment directing verdicts in favor of all of the defendants. A divided panel of the Court of Appeals vacated the judgment and ordered a new trial as to all but four of the defendants.
I have not reviewed the entire record of what is said to have been "the longest case tried to a jury in the history of the United States judiciary." Memorandum of District Court, App. to Pet. for Cert. in No. 79-914. p. 175a. I have, however, [446 U.S. 754, 761] read with care the three separate opinions filed in the Court of Appeals as well as the District Court's extensive memorandum. Each judge agreed that the case against the federal defendants turns upon the sufficiency of the evidence regarding the alleged conspiracy.
At the close of the plaintiffs' case in chief, the District Court "reviewed all of the evidence . . . with all reasonable inferences that could be drawn therefrom, in the light most favorable to the plaintiffs." Id., at 186a. The court found the record "devoid of proof of . . . participation [by the federal defendants] in a conspiratorial plan among themselves or with the state defendants. Thus no liability on their part existed and their motions for directed verdicts were granted." Id., at 193a-194a. More specifically, the court explained:
There is no question that the FBI viewed that organization, which openly advocated armed resistance to authority and [446 U.S. 754, 762] had a documented record of violence, 2 as a serious threat to public safety and to the lives of law enforcement officers. But the issue at trial was not whether the FBI had a program designed to discredit the Black Panthers, or even whether the program had produced excesses. The only issue was whether these federal defendants conspired with state officers to conduct an unlawful search in which excessive force would be used or, subsequently, to harass the plaintiffs with malicious prosecutions. See id., at 648-649 (Fairchild, C. J., concurring).
No one contends that any of the federal defendants took part in the raid itself. They did supply information to state officers about illegal firearms stored in the apartment. But each federal defendant testified that he did not know of and did not participate in any planning or joint activity regarding the operation at any time. This uncontradicted testimony was fully corroborated by the state defendants. In these circumstances, inferences drawn from a program not shown to have been related to the events in question are of dubious value. Judge Pell, dissenting in part in the Court of Appeals, viewed the matter as follows:
This Court ordinarily leaves questions as to the sufficiency of evidence in a particular case to the courts below. But this is nor ordinary litigation. Although it may appear on the surface to be an unexceptional civil rights suit for damages, the extraordinary magnitude of the litigation and the nature and scope of the evidence demonstrate that this lawsuit differs [446 U.S. 754, 764] from the civil damages actions to which our courts are accustomed.
Judge Pell observed that "this case has important overtones of unbridled denigrating attacks on governmental officials." Id., at 666. The allegations of unconstitutional conduct by the state defendants are serious indeed, and I express no view on the merits of these claims. But the plaintiffs have a larger target: the Federal Bureau of Investigation. It is apparent that a basic trial strategy was to attack the FBI broadly. If there were sufficient relevant evidence to support the plaintiffs' claims, the law would require that they go to the jury regardless of underlying motive. Yet the presence of this collateral objective, related only tangentially if at all to the recovery of damages, imposed a special duty on the courts to bear in mind the admonition of Butz v. Economou, 438 U.S. 478, 508 (1978), that "federal officials [not be] harassed by frivolous lawsuits."
Butz rejected a claim that all highly placed federal officials should be absolutely immune from liability for civil rights violations. But federal officials, like state officials used under 42 U.S.C. 1983, have qualified immunity from suit. They therefore are liable only when they "discharge their duties in a way that is known to them to violate . . . a clearly established constitutional rule." 438 U.S., at 507 . In Butz, we emphasized that absolute immunity is unnecessary to protect the public interest in "encouraging the vigorous exercise of official authority," id., at 506, because qualified immunity shields officials from liability for good-faith mistakes. We predicted that such immunity would prove "workable," because "firm application of the Federal Rules of Civil Procedure" would permit "[i]nsubstantial lawsuits [to] be quickly terminated." In particular, "damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment. . . ." Id., at 507-508. The District Court heeded this admonition. [446 U.S. 754, 765]
In reversing that court, the Court of Appeals misappreciated the premises on which this Court rested its ruling in Butz. In Butz, we endeavored to accommodate two important societal objectives: to compensate persons injured by civil rights violations, and to do so without discouraging vigorous enforcement of the laws. The first objective impelled the Court to reject absolute in favor of qualified immunity for most officials. We recognized, however, that our decision would invite litigation in which constitutional claims easily are asserted. We therefore cautioned the judiciary to exercise their authority under the rules of procedure in order to protect official defendants from groundless claims. Id., at 507.
Our concern in Butz was that extravagant charges might force officials to trial on claims that lacked a substantial basis in fact. In this case, there can be little speculation as to what evidence may be marshaled in support of the complaint. After 16 months of trial devoted exclusively to the plaintiffs' evidence, the trial court found the record wholly "devoid of proof of . . . participation" by the federal defendants in the conspiracy alleged. App. to Pet. for Cert. in No. 79-914, p. 193a. These defendants continue to assert that their conduct was a routine and good-faith effort at cooperative law enforcement. Neither the parties nor the courts below have identified concrete evidence to the contrary. If a new trial may be ordered in this case, similar allegations could survive properly supported motions for summary judgment on the basis of speculative inferences from unrelated evidence. The prospect of defending such lawsuits can hardly fail to "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949).
The Court of Appeals' remand for a second trial as to the federal defendants in this case vitiates the protection we [446 U.S. 754, 766] sought to insure in Butz. The effect on legitimate law enforcement efforts could be serious. At the least, these officers' experience is likely to discourage other federal officials from cooperating with state law enforcement agencies over which they have no control. I would grant the petition for certiorari.
[ Footnote 1 ] I confine this dissent to the federal defendants, although it is not clear that the Court of Appeals properly reversed the directed verdicts as to many of the other defendants. See 600 F.2d 600, 649 (1979) (Pell, J., dissenting in part).
[ Footnote 2 ] Summarizing evidence of record, Judge Pell's dissent described the party as an "extremist, paramilitary, uniformed organization. . . . It was a violent, revolutionary organization, which by party edict required its members to own and know how to use weapons and to have access to more than one weapon." Id., at 654.
Judge Pell also noted that "Black Panther publications called for killing policemen," that the party "published a `Destruction Kit' which described how to make and use incendiary bombs and other similar devices," that children attending its highly praised breakfast program were instructed to "Kill the Pigs," and that Black Panthers had "boasted" that one of their members had killed two Chicago police officers less than a month before the events at issue in this case. Id., at 654-655.
MR. JUSTICE MARSHALL, dissenting.
It is not clear to me that the award of attorney's fees in this case was in error because "respondents have of course not prevailed on the merits of any of their claims." Ante, at 758. The Court concedes that Congress in passing the Civil Rights Attorney's Fees Awards Act of 1976 contemplated the award of attorney's fees pendente lite in certain instances, and that a litigant may be a "prevailing party" for purposes of the Act without obtaining final judgment on the merits following a full trial. It is sufficient if there has been a determination of "`substantial rights of the parties,'" ante, at 757, quoting H. R. Rep. No. 94-1558, p. 8 (1976).
In the instant case, respondents have been successful in obtaining reversal on appeal of a directed verdict entered against them. While this "only" means that respondents are entitled to a trial of their cause, ante, at 758, that is a major accomplishment which determines "substantial rights of the parties." Had petitioners been successful in defending their directed verdict on appeal, there is no doubt that they would be considered to have prevailed on the merits; the lawsuit would have been finished. Obtaining an appellate order requiring that a new trial be held after an action to enforce civil rights has been prematurely terminated similarly is an achievement reflecting on the merits of the case. The decision of the Court of Appeals, establishing that respondents produced sufficient evidence to warrant sending their case to the jury, breathes new life into an otherwise dead lawsuit. Without full briefing and oral argument, I am unable to [446 U.S. 754, 767] say that this does not fall within the category of legal victories which determine "substantial rights of the parties" for purposes of the Act.
In my view, the attorney's fees issue is sufficiently difficult to warrant the plenary attention of this Court rather than summary reversal. Accordingly, I dissent.