Attorney FEES – Lovell
* American rule: - every party takes care of Attorney fees
* Some states have embraced the catalyst theory –
* England has fee shifting in every civil case: - there is a SC that determines nothing in England but attorney fees.
* The reality with this is that there is less litigation because any losing party has to pay the others fee.
* The cost should be reasonable so you can’t just say that you billed all the amount and now need to be paid.
* Civil rights attorney fee: - The second front: - The battle lines for civil rights – there is grudging attitude on court awarded attorney fees – since 1987 we have had the grudging area of the court ...view middle of the document...
Text of § 1988(b) seems to make fee awards discretionary w/ the court – but award of fees to successful civil rights Ps is REQUIRED, absent special circumstances that would render such an award unjust
b. “Special circumstances” that might justify denial of fees very narrow category
* Only circumstance found to justify denial of fees was for P litigating pro se
* Circumstances that do not justify denial of fees: inability to pay counsel, D’s food faith, innocent taxpayers would have to pay, etc.
3. A prevailing P should ordinarily recover absent special circumstances if P litigated all his claims to judgment and won them all she qualifies as a “prevailing party” w/in the meaning of § 1988(b)
4. A prevailing D may recover fees ONLY when litigation is unreasonable, frivolous, meritless, contempt of court, stock holders revenue suit or vexatious (i.e., groundless or w/o foundation – not just that P ultimately lost)
5. Equitable considerations that counsel awarding attorney’s fees to prevailing P which are absent in the case of a prevailing D: (i) P is the chosen instrument of Congress to vindicate a policy Congress considered of the highest priority (ii) when district court awards counsel fees to prevailing P, it is awarding them against a violator of federal law.
* Buckhannon Board & Care Home v. W.V. Dept of Health and Human Resources: - P operates assisted living residences and failed an inspection (was ordered to close the residences) by state fire marshal b/c some of the residents were incapable of “self-preservation” as defined under state law.
* P brought suit against state of W.V., 2 of its agencies, and 18 individuals seeking declaratory and injunctive relief that the “self-preservation” req. violated the Fair Housing Amendments Act of 1988 and the Americans w/ Disabilities Act of 1990.
* The next year, W.V. leg enacted 2 bills eliminated the “Self-preservation” req. and district court granted Ds’ motion to dismiss the case as moot. Ps requested attorney’s fees as the “prevailing party” under FHAA and ADA (both allowed court in its discretion to award attorney’s fees).
* Ps claim they are entitled to attorney’s fees under the “catalyst theory” – P is a prevailing party if it achieves the desired result b/c the lawsuit brought about a voluntary change in D’s conduct
* Holding: The catalyst theory is NOT a permissible basis for the award of attorney’s fees. “Prevailing party: means one who has been awarded some relief by the court whereby there has been an enforceable alternation of the legal relationship of the parties.
* Precedent counsels AGAINST authorizing attorney’s fees w/o a corresponding material alteration in the legal relationship of the parties. D’s voluntary change in conduct lacks the necessary judicial imprimatur on the change.
* Leg history cited by Ps is at best ambiguous as to the availability of the catalyst theory for awarding...
