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Interim attorney fees in civil rights cases

Author: LegalEase Solutions


Can interim attorney fees be awarded in civil rights cases?


The general rule that only a prevailing party can recover attorney fees under § 1988 is applicable to interim attorney fees orders also. In order to be considered as a prevailing party, the plaintiff should be able to point out some determination that changes the legal relationship between the parties. The Circuit courts have awarded prevailing parties interim attorney fees when they were able to point out “some relief on the merits”, “the disparity in litigation resources between parties”, and even upon the “duration of the litigation”.


“A plaintiff must be a ‘prevailing party’ to recover an attorney’s fee under § 1988.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Hanrahan, supra at 758).  “Thus, at a minimum, to be considered a prevailing party within the meaning of § 1988, the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.” Texas State Teachers Ass’n v. Garland Indep. Sch. Dist. (“Garland”), 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989).

Thus, “ [i]t 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.” Hanrahan v. Hampton, 446 U.S. 754,757,100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). “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.” Id., at 758.

The First Circuit observed that “[t]he Civil Rights Attorney’s Fees Awards Act is not meant as a ‘punishment’ for ‘bad’ defendants who resist plaintiffs’ claims in bad faith. Rather, it is meant to compensate civil rights attorneys who bring civil rights cases and win them.” Coalition for Basic Human Needs v. King, 691 F.2d 597,602 (1st Cir. 1982).

The First Circuit, though in a liability insurance case, held that “[i]t is black-letter law that the pendency of an appeal does not operate as an absolute barrier to an interim fee award under § 1988 when a party ‘has established his entitlement to some relief on the merits of his claims.’” Garcia-Rubiera v. Fortuno, 727 F.3d 102, 114 (1st Cir. 2013) (quoting Hanrahan, supra, at 757).

The same court further observes an instance where Ninth circuit awarded interim attorney fees as:

[T]aylor III court ruled that [interim] fees should be awarded where plaintiffs have prevailed in a ‘discrete stage’ of the case and ‘the disparity in litigation resources between parties’ means that ‘failure to award interim fees would create a considerable risk of starving out plaintiffs with what we have already determined to be good claims.

Id., 727 F.3d 102, 115 (1st Cir. 2013) (quoting Taylor v. Westly, 525 F.3d 1288, 1290 (9th Cir. 2008)). Taylor, supra, is a class action suit asserting, inter alia, constitutional deprivations in violation of § 1983.

The Second circuit cites a case where “plaintiffs have obtained enforceable judgments, in the form of injunctions, against the defendants” and “have obtained multiple enforceable judgments against defendants on the merits of their claim”, “they are considered a prevailing party and are entitled to an interim award of attorneys’ fees against the County for the work they have performed to date.” Marriott v. County of Montgomery, 426 F.Supp.2d 1, 12-13 (N.D.N.Y.2006) (cited in McDaniel v. County of Schenectady, 595 F.3d 411,414 (2nd Cir.2010). McDaniel is a civil rights case.

The Third Circuit noted “that the legislative history to the Civil Rights Attorney’s Fees Awards Act of 1976, which provided for attorney’s fees to prevailing parties in civil rights cases, explicitly contemplates the awarding of interim attorney’s fees.” Yakowicz v. Com. of Pa., 683 F.2d 778 n 4 (3rd Cir. 1982). Further, the court, in another civil rights case, has held that “temporary relief may support § 1988 fees, even if the prevailing party does not obtain a final judgment in its favor.” National Amusements Inc. v. Borough of Palmyra, 716 F.3d 57, 64 (3d Cir.2013) (citing People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 235-36 (3d Cir.2008)). The same court, in an IDEA case, has held that “[a]n interim award is available ‘only when a party has prevailed on the merits of at least some of his claims.’” J.O. v. Orange Twp. Bd. of Educ., 287 F.3d 267, 273 (3d Cir.2002) (quoting Hanrahan, supra at 757 -758).

Similarly, in a class action under the Civil Rights Act, “[the Fifth Circuit] Court has recognized that interim awards are proper in appropriate cases.” James v. Stockham Valves & Fittings Co., 559 F.2d 310, 358-59 (5th Cir.1977) (citing Baxter v. Savannah Sugar Corp., 495 F.2d 437,447 (5th Cir.1974)). The court further observed in another civil rights case that “[t]he United States Supreme Court has indicated that, in federal litigation, where a party has succeeded on an important issue, even though that party may fail on the remaining issues, an interim award of attorney’s fees may be awarded by a court under sec. 1988.” Allen v. Louisiana State Bd. of Dentistry, 948 F.2d 946, 947 (5th Cir.1991).

Following this, the Eighth Circuit has held “duration of the litigation” as an appropriate reason for interim fees in civil rights cases. Hameed v. International Ass’n of Bridge, Structural and Ornamental Iron Workers, Local Union No. 396, 637 F.2d 506, 523 (8th Cir. 1980).

Further, the Sixth Circuit court, in a case involving attorney fees under 42 U.S.C. § 1988, held that “[a] district court may award interim attorney’s fees during the pendency of litigation when that court has ‘entered a concrete order that determines substantial rights of the parties, meaning when a party has prevailed on the merits of at least some of his claims.’” Bazzetta v. McGinnis, 290 Fed. Appx. 905, 909 (6th Cir.2008) (quoting Webster v. Sowders, 846 F.2d 1032, 1036 (6th Cir.1988).

The Seventh Circuit also supported interim fees when the court in a prisoner’s civil rights suit held that “[o]nce a plaintiff obtains substantive relief that is not defeasible by further proceedings, he can seek interim fees and the district court has the power to award them. But until there is some relief, there can be no award.” Richardson v. Penfold, 900 F.2d 116, 119 (7th Cir.1990) (citing Palmer v. City of Chicago, 806 F.2d 1316, 1320 (7th Cir.1986)). The same circuit, in another instant of 42 U.S.C. § 1988 noted that “when a preliminary injunction has been entered and affirmed on appeal but still further proceedings on the merits clearly are contemplated”, Dupuy v. Samuels, 423 F.3d 714,724 – 25 (7th Cir.2005), “the case law of the Supreme Court and of this court simply does not permit an interim award of attorneys’ fees to be made …” Id., 725.

The D.C. Circuit Court, in support of interim fees, observed that “Title VII actions … are typically lengthy affairs …which, when taken at all, are almost always taken by counsel on a contingent fee basis.” Brown v. Marsh, 707 F.Supp. 21, 23 (D.C.Cir.1989). Further, “[a]s private plaintiffs in these cases already face ample obstacles in their quests for justice, the Court declines to add another by limiting the availability of interim attorney’s fees and costs.” Id., at 24.

However, “injunctive relief of the ‘procedural’ variety, even if there is a finding of likelihood of success on the merits, cannot be the basis for interim attorney’s fees.” Dubuc, supra, at 753 (quoting Webster, supra).

Similarly, an interim award of attorney fees is “not appealable until the conclusion of the underlying suit on the merits.” But there is an exception – “if ‘the party against whom the award is made will not be able to get his money back if he prevails at the end of the case and the award is vacated then.’” Dupuy ,supra at 717-18 (quoting Estate of Drayton v. Nelson, 53 F.3d 165, 166–67 (7th Cir.1994)).