Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT (cid:252)
M ELINDA B ENTON , Individually and Representative of a Class,
Plaintiff-Appellee, v.
O REGON S TUDENT A SSISTANCE No. 03-35975 (cid:253) C OMMISSION ; O REGON O FFICE OF D.C. No. D EGREE A UTHORIZATION ; A LAN CV-00-06272-HO C ONTRERAS , in his Official and Individual Capacities; J EFF
S VEJCAR , in his official capacity as executive director of Oregon
Student Assistance Commission, (cid:254) Defendants-Appellants.
(cid:252) M ELINDA B , Individually and Representative of a Class,
Plaintiff-Appellant, v. No. 03-36002
O REGON S A SSISTANCE (cid:253) C OMMISSION ; O O FFICE OF D.C. No. D EGREE UTHORIZATION ; A LAN CV-00-06272-MRH C ONTRERAS , in his Official and OPINION Individual Capacities; J EFF S VEJCAR , in his official capacity as executive director of Oregon
Student Assistance Commission, (cid:254) Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, Chief District Judge, Presiding Argued and Submitted May 4, 2005—Portland, Oregon Filed August 25, 2005 Before: Alfred T. Goodwin and Richard R. Clifton, Circuit Judges, and John S. Rhoades, Sr.,* District Judge.
Opinion by Judge Rhoades
*The Honorable John S. Rhoades, Sr., Senior United States District Judge for the Southern District of California, sitting by designation. COUNSEL Stephen K. Bushong (argued) and Daniel J. Casey (briefed) Oregon Department of Justice, Salem, Oregon, for defendants-appellants-cross-appellees.
Wendell R. Bird (argued) and Jonathan T. McCants (briefed), Bird & Loechl, LLC, Atlanta, Georgia, for the plaintiff- appellee-cross-appellant.
OPINION
RHOADES, District Judge:
I. Introduction
The parties have filed cross-appeals of the district court’s order awarding $371,362 in attorney’s fees and $70,828.84 in costs in a case where the sole relief obtained was a judgment in the amount of one dollar. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.
II. Background
Melinda Benton (“plaintiff”) is a professor at a community college in Oregon. She holds a degree from Bob Jones Uni- versity, an unaccredited institution that emphasizes conserva- tive values. At the time she brought this action, Oregon law provided in relevant part:
No person who has been warned by the Oregon Student Assistance Commission, through the Office of Degree Authorization, to cease and desist shall claim or represent that the person possesses any aca- demic degree unless the degree has been awarded to or conferred upon the person by a school that: (a) Has accreditation recognized by the United States Department of Education or the foreign equiv- alent of such accreditation . . . .
Or. Rev. Stat. § 348.609.
Plaintiff brought this action pursuant to 42 U.S.C. § 1983. Plaintiff brought this § 1983 action as a class action seeking declaratory and injunctive relief. Plaintiff alleged seven claims for violation of the federal and state constitutional rights to free speech, free exercise of religion, due process and equal protection. These claims were predicated upon allega- tions that the Oregon Office of Degree Authorization had decreed that plaintiff should be fired from her position at the college because her degree was “illegal” or face criminal sanctions and then later decreed that plaintiff need not be fired but must give a disclaimer regarding her degrees.
Plaintiff initially named four defendants: the Oregon Department of Education, the Oregon Student Assistance Commission, the Oregon Office of Degree Authorization and Alan Contreras, the administrator of the Oregon Office of Degree Authorization, in his official and individual capacities. Plaintiff later amended her complaint to drop the institutional defendants and add two more individuals: Stan Bunn, in his official capacity as Superintendent of Public Instruction and Head of the Oregon Department of Education, and Jeff Svej- car, Executive Director of the Oregon Student Assistance Commission.
The district court denied class certification and dismissed defendant Bunn from the case. Subsequently, the Oregon Leg- islature amended Or. Rev. Stat. § 348.609 to provide an addi- tional exception to the “cease and desist” requirement where the school is “located in the United States and has been found by the [Oregon Student Assistance Commission through the Office of Degree Authorization] to meet standards of aca- demic quality comparable to those of an institution located in the United States that has accreditation, recognized by the United States Department of Education, to offer degrees of the type and level claimed by the person.” Or. Rev. Stat. § 348.609(1)(d). The district court then dismissed plaintiff’s claims for declaratory and injunctive relief as moot in light of the amendment to Or. Rev. Stat. § 348.609.
Plaintiff then sought leave to amend her complaint to add a claim for compensatory damages against defendants Svejcar and Contreras in their individual capacities in an unspecified amount. The district court allowed the amendment. Finally, at some point in the litigation, plaintiff unsuccess- fully attempted to amend the complaint to add claims against several past and present members of the Oregon Student Assistance Commission.
At the pretrial conference, plaintiff sought reconsideration of the district court’s previous rulings disposing of much of her case. The district court entertained additional briefing and took evidence at trial but ultimately affirmed its prior sum- mary judgment rulings. After a bench trial, the district court found that defendant Contreras had violated plaintiff’s consti- tutional rights. Specifically, the district court concluded that defendant “Contreras’ application of the regulations to plain- tiff’s degrees resulted not from an intent to achieve the goals of the regulations, but because of bias toward the institution from which they were received.” That finding is not chal- lenged on appeal. The district court awarded plaintiff nominal damages in the amount of one dollar. Although plaintiff con- tends that she received a declaratory judgment that her rights were violated, a review of the judgment reveals that the judg- ment is a damages judgment only.
Plaintiff subsequently sought attorney’s fees in the amount of $857,278 and costs in the amount of $104,213.05. The trial court awarded plaintiff $371,362 in attorney’s fees and $70,828.84 in costs.
Both plaintiff and defendants [1] have filed timely notices of appeal of the district court’s award.
[1] Because cross-appeals were filed and for ease of reference, we will use the terms “plaintiff” and “defendants” rather than appellee/cross-appellant and appellants/cross-appellees. Although the judgment is only against defendant Contreras, reference is made to “defendants” throughout the briefs and in the district court’s fee order. Thus, the term “defendants” will be used in this opinion.
III. Analysis
A. Standard of review
We review an attorney’s fee award pursuant to 42 U.S.C.
§ 1988 under an abuse of discretion standard.
See Wilcox v.
City of Reno
, 42 F.3d 550, 553 (9th Cir. 1994);
Corder v.
Brown
, 25 F.3d 833, 836 (9th Cir. 1994). “A district court
abuses its discretion when it awards fees ‘based on an inaccu-
rate view of the law or a clearly erroneous finding of fact.’ ”
Wilcox
, 42 F.3d at 553 (quoting
Corder v. Gates
, 947 F.2d
374, 377 (9th Cir. 1991)). “Any elements of legal analysis
which figure in the district court’s decision are, however, sub-
ject to de novo review.”
Corder
,
B. Plaintiff’s Entitlement to Fees
In an action brought pursuant to 42 U.S.C. § 1983, “the
court, in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee as part of
the costs . . . .” 42 U.S.C. § 1988(b). A § 1983 plaintiff who
receives a nominal damage award is a prevailing party for
purposes of § 1988.
See Farrar v. Hobby
,
In
Hensley
, the Supreme Court explained that “[t]he most
useful starting point for determining the amount of a reason-
able fee is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.”
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “un- desirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Id. at n. 3. [2]
[1]
Although this is the analysis generally applied by dis-
trict courts in determining fee awards, as we noted in
Morales
v. City of San Rafael
,
minimis are exempted from the general requirements that gov- ern the calculation of attorney’s fees . . . .” Id. at 362. This includes “the requirement that a lodestar first be calculated,” id ., as well as the requirement that the district court “recit[e] the 12 factors bearing on reasonableness,” Farrar , 506 U.S. at 115. After Farrar , the district court’s first consideration must be whether the nominal damages plaintiff is entitled to any fees at all.
[2] In Farrar , the plaintiffs filed a lawsuit for $17 million dollars against six defendants. After ten years of litigation, they obtained a nominal damages judgment of one dollar against one defendant. The district court nonetheless awarded the plaintiffs $280,000 in attorney’s fees. As the Supreme Court explained, “ ‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.’ ” Farrar , 506 U.S. at 114 (quoting Hensley , 461 U.S. at 436). “In a civil rights suit for damages . . . the award- ing of nominal damages [ ] highlights the plaintiff’s failure to prove actual, compensable injury.” Id. at 115. In light of the nominal damages award, the Supreme Court concluded that the Farrar litigation “accomplished little beyond giving peti- tioners ‘the moral satisfaction of knowing that a federal court concluded that [their] rights had been violated’ in some unspecified way.” Id. at 114 (alteration in original) (quoting Hewitt v. Helms , 482 U.S. 755, 762 (1987)). Affirming the court of appeals’ decision reversing the district court’s award of fees, the Supreme Court explained that “[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all .” Id. at 115 (emphasis added) (internal citation omitted).
[3]
As we have noted, “
Farrar
therefore teaches that an
award of nominal damages is not enough” to justify an award
of attorney’s fees.
Wilcox
,
We now consider whether the district court properly con- cluded that plaintiff here obtained “other tangible results” that would warrant the award of attorney’s fees and costs.
1. Benefit to the Public At Large The district court offered two reasons for its decision to award fees. First, it concluded that the public at large would benefit from plaintiff’s success on the merits. The district court stated:
The court declines to credit the legislative and administrative changes that precede the judgment in this case for purposes of determining an appropriate fee award. However, the court notes the significant salutary effect achieved by this litigation in that future action by defendants, with respect to similarly situated degree recipients, will be guided by the con- stitutional parameters delineated by plaintiff’s efforts. In this respect, the success of plaintiff in obtaining a declaration that Contreras’ conduct in singling out plaintiff’s degree for regulation because of bias toward the viewpoints of the institution from which they were received not only serves to vindi- cate the harm to plaintiff, but to protect the public at large.
It is true that legislative and administrative changes significantly advanced plaintiff’s cause. Nonetheless, in light of the discretion still exercised by Contreras and the Office of Degree Authorization with respect to serious minded, but unaccredited institutions, plaintiff’s victory at trial serves a signif- icant purpose . . . .
(emphasis added).
Defendants contend that, in awarding fees, the district court should not have considered the public benefit derived from the judgment because of the Supreme Court’s ruling in Buck- hannon Board and Care Home, Inc. v. West Virginia Depart- ment of Health & Human Resources , 532 U.S. 598 (2001). However, Buckhannon, which considered whether a party who has failed to secure a judgment is a prevailing party, in no way undermines Justice O’Connor’s Farrar concurrence or our decision in Wilcox , which addressed distinctly different issues.
In
Buckhannon
, the issue was whether the term “prevailing
party” as used in a fee statute
[3]
“includes a party
that has failed
to secure a judgment on the merits
or a court-ordered consent
decree, but has nonetheless achieved the desired result
because the lawsuit brought about a voluntary change in the
defendant’s conduct.”
Id.
at 600 (emphasis added). The theory
that a “prevailing party” is one whose lawsuit does nothing
more than bring about a voluntary change in the defendant’s
conduct was known as the “catalyst theory.” As the Supreme
[3]
While
Buckhannon
did not deal with § 1988 directly, we have applied
its holding to 42 U.S.C. § 1988.
See Labotest, Inc. v. Bonta
,
Court explained in
Buckhannon
, a “ ‘material alteration of the
legal relationship of the parties’ ” is “necessary to permit an
award of attorney’s fees.”
Id.
at 604 (quoting
Tex. State
Teachers Ass’n v. Garland Indep. School Dist.
,
Buckhannon did not address the issue of the factors to be applied in determining the reasonableness of an attorney’s fee award to a prevailing party. Moreover, nothing in Buckhan- non suggests that, in assessing the success of a nominal dam- ages plaintiff for purposes of determining the reasonableness of a fee award, a district court cannot consider the factors set forth in Justice O’Connor’s Farrar concurrence and our deci- sion in Wilcox .
Furthermore, although an inquiry into whether a plaintiff who is awarded only nominal damages has accomplished some public purpose or achieved some public goal so that an award of fees would be reasonable may on its face appear very similar to the inquiry under the catalyst theory, they are two separate inquiries with two separate purposes. The pur- pose of the catalyst theory was to confer upon a plaintiff “pre- vailing party” status in cases where the plaintiff failed to obtain a judgment. This theory of conveying “prevailing party” status was rejected because to be entitled to fees there must be a change in the legal relationship of the parties. See id. at 604. A court engages in the analysis set forth in Wilcox and Justice O’Connor’s Farrar concurrence only where the plaintiff is a prevailing party because there has been a change in the legal relationship of the parties due to the procurement of a judgment. Then, the court only engages in that analysis for the limited purpose of determining a reasonable fee award.
Finally, as we recently reaffirmed, in determining the rea-
sonableness of fees a district court should consider,
inter alia
,
“whether the plaintiff’s success ‘also accomplished some pub-
lic goal . . . .’ ”
Cummings
,
[4] The foregoing notwithstanding, we conclude that the district court erred in awarding fees based on a finding that plaintiff’s lawsuit ultimately serves to benefit the public at large. The district court’s reasoning for awarding fees can be boiled down to the conclusion that because it found that defendant Contreras violated plaintiff’s constitutional rights, defendant Contreras will necessarily think twice before violat- ing the rights of others in the future. However, well prior to the district court’s finding of a constitutional violation and award of nominal damages, defendant Contreras exercised his discretion under the revised version of Or. Rev. Stat. § 348.609 in plaintiff’s favor by recognizing her degree as being from an institution that met the standards of academic quality comparable to an accredited institution. Because defendant Contreras’ wrongful conduct occurred under the previous statute and because defendant Contreras voluntarily exercised his discretion under the revised statute consistent with the requirements of the Constitution, we find that the record in this case does not support the district court’s conclu- sion that its finding of a constitutional violation under the for- mer version of the statute will in any way guide defendant Contreras’ future conduct. Thus, this factor identified by the district court does not justify the imposition of fees in this case.
2. Benefit to Plaintiff Personally [5] As a second basis for awarding fees, the district court explained:
Furthermore, even though plaintiff no longer faced restriction on the use of her degrees in Oregon even absent the judgment, her career will always be marked by this occurrence. Obtaining a declaration that her rights were violated serves an important pur- pose for plaintiff. She now has a judgment to point to in support of the trustworthiness of her education and her credentials.
The district court’s language suggests that plaintiff obtained a declaratory judgment; however, she did not. It is undisputed that the district court dismissed plaintiff’s claim for declara- tory judgment as moot in light of the change in the statute, and nothing in the language of the judgment itself suggests that plaintiff was awarded declaratory relief. Moreover, although plaintiff moved in court “to amend the judgment in order to add the declaratory judgment language from Page Seven of the opinion,” a review of the docket reveals that the district court did not amend the judgment, and its refusal to do so is not before us on appeal. The “declaration” to which the district court refers is the district court’s conclusion in its Findings of Fact and Conclusions of Law that plaintiff had proven that her constitutional rights had been violated. That conclusion did no more than support the imposition of the nominal damages award.
[6]
As noted, to justify an award of attorney’s fees in this
case, the district court must identify “some way in which the
litigation succeeded,
in addition
to obtaining a judgment for
nominal damage.”
Wilcox
,
[7] Finally, the judgment is not, as the district court found, evidence that plaintiff can point to “in support of the trustwor- thiness of her education and her credentials.” Rather, the judgment is merely evidence that the former version of O.R.S. § 348.609 was applied to plaintiff in a biased manner. The evidence that plaintiff can point to regarding the legitimacy of her credentials is the finding by defendant Contreras and the Office of Degree Authorization made pursuant to the revised version of the statute that Bob Jones University meets the standards of academic quality comparable to an accredited institution. However, given that this finding was made well prior to the finding of liability and entry of judgment in this case, this determination regarding the legitimacy of plaintiff’s credentials cannot be considered a “tangible result” of this lit- igation that would support an attorney’s fee award in this case.
IV. Conclusion
The district court’s order awarding attorney’s fees and costs is REVERSED.