On petition for writs of certiorari to the United States Court
of Appeals for the Fourth Circuit.
The petitions for writs of certiorari are denied.
Justice REHNQUIST, with whom Justice O'CONNOR joins,
By enacting the Civil Rights Attorney's Fees Awards Act of 1976
(Act), Congress created a statutory basis for courts, in the
exercise of their sound discretion, to award attorney's fees to
private litigants who prevail in litigation under various civil
rights laws. The Courts of Appeals responsible for interpreting the
Act have differed as to the correct construction of more than one
of its provisions. Because the two cases from the Court of Appeals
for the Fourth Circuit which the Court today declines to review
present examples of this difference on the important issue of how
to determine when a party "prevails" within the meaning of the Act,
I dissent from the denial of certiorari.
The Act, codified as the last sentence of 42 U.S.C. 1988,
provides for the discretionary award of attorney's fees to the
"prevailing party" in a lawsuit brought under one or more of eight
specified statutes. [Footnote
] The Senate Report accompanying the Act, S.Rep.No.94-1011
(1976), U.S.Code Cong . & Admin.News 1976, p. 5908, provides
that "[i]t is intended that the standards for awarding fees be
generally the same as under the fee provisions of the 1964 Civil
Page 455 U.S.
Act." 2 Id., at 4. Two principal cases from this Court deal with
the question of when a party shall recover attorney's fees under
the Civil Rights Act of 1964. Newman v. Piggie Park Enterprises,
Inc., 390 U.S.
(1968), held that "one who succeeds in obtaining an
injunction under . . . Title [II] should ordinarily recover an
attorney's fee unless special circumstances would render such an
award unjust." Id., at 402. Christiansburg Garment Co. v. EEOC,
434 U.S. 412
(1978), held that a defendant who successfully defended a charge of
employment discrimination under Title VII could recover attorney's
fees where the District Court found that the plaintiff's action
"was frivolous, unreasonable, or without foundation, even though
not brought in subjective bad faith." Id., at 421.
In each of these cases, this Court found it unnecessary to
decide any question respecting the definition of "prevailing
party," because in each case the suit had gone to judgment in favor
of the party seeking attorney's fees. Nor has this Court had
occasion to define "prevailing party" as used in the Act. As more
and more litigation has ensued in which claims for attorney's fees
are made under the Act, however, more troublesome questions as to
when a party has "prevailed" have confronted the Courts of
The Court of Appeals for the Fourth Circuit, in one of the
judgments which the Court today declines to review, has established
a test for determining when a party "prevails" within the meaning
of 1988. That test requires the trial court to determine
" 'the precise legal/factual
condition that the fee claimant has sought to change or affect so
as to gain a benefit or
Page 455 U.S.
be relieved of a burden. With this condition taken as a
benchmark, inquiry may turn to whether as a quite practical matter
the outcome . . . is one to which the plaintiff fee claimant's
efforts contributed in a significant way, and which does involve an
actual conferral of benefit or relief from burden when measured
against the benchmark condition.' " Bonnes v. Long, 651 F.2d
, 217 (1981), quoting Bonnes v. Long, 599
, 1319 (CA4 1979).
This test, which focuses only on the factual question of whether
the lawsuit caused a change favorable to the plaintiff, apparently
is well established in the Fourth Circuit, for it was followed by
the Court of Appeals in another case denied review today. Young v.
Kenley, 641 F.2d
(1981). The effect of the Bonnes test is best demonstrated
by the facts of Young.
Willie E. Young, a black woman, was hired in 1973 as a public
health nurse by the Virginia State Department of Health. Because
Young had graduated from a school that was not accredited by the
National League of Nursing, she was assigned a category "A"
position, the lowest salary level for public health nurses in
Virginia. Although she was promoted to level " B" after complaining
to the State's Equal Opportunity Coordinator, she was denied
further promotion for lack of an accredited degree.
In February 1977, the Health Department eliminated the
regulation which barred Young from further promotion, and on June
23, 1978, the Deputy State Health Commissioner invited Young to
apply for advancement. Two days later, the change in policy
notwithstanding, Young filed a complaint in federal court alleging
that the State's promotion policy violated 42 U.S.C. 1981 and 1983.
Although the complaint was dismissed for failure to obtain a
right-to-sue letter from the Equal Employment Opportunity
Commission (to which she had complained about the State's policy in
1976), and although she qualified for promotion in September 1978
by taking and passing the State's merit examination, Young filed
Page 455 U.S.
amended complaint in October 1978. A hearing was held on
November 2, 1978, and the parties reached a settlement two weeks
later. The settlement granted Young a promotion to public health
nurse level "C" retroactive to March 1977 with $992 in backpay, and
upgraded her current position from level "B" to level "C" so that
she would not have to relocate within the State.
The United States District Court for the Eastern District of
Virginia twice denied Young's request for 1988 attorney's fees,
once after the settlement and once after a remand from the Court of
Appeals. The District Court found that her "suit was wholly
ineffective to remove [the regulatory] bar to promotion since the
bar had been removed by a voluntary, unrelated act of the defendant
well before [Young's] suit was instituted." Young v. Kenley,
, 368 (1980). The District Court also found that the
objectives of the Act would not be furthered by the award of
attorney's fees in this case: "While actions by 'private attorneys
general' are to be rewarded under the attorney's fees provision, it
could not be intended that a party be encouraged to file a suit
where litigation would be superfluous. A benefit which can be
obtained by an informal request need not be the subject of a formal
demand." Id., at 370.
Applying the standard set forth in Bonnes, the Court of Appeals
for the Fourth Circuit reversed the denial of attorney's fees. In a
brief per curiam opinion the court stated:
"The district court properly noted that a plaintiff whose case
ends in settlement may be considered a 'prevailing party' under the
civil rights attorney's fees provisions. In making its
determination whether the plaintiff was in fact the 'prevailing
party,' the Court applied the test set forth in Nadeau v. Helgemoe,
(1st Cir., 1978). After the district court rendered its
opinion, this court issued its decision in Bonnes [v. Long,
(1979) ]. Bonnes establishes the test to be applied in
this Circuit for the consideration whether a
Page 455 U.S.
party to a case which ends in settlement is a 'prevailing party'
within the meaning of 42 U.S.C. 1988 and 2000e-5(k).
"Accordingly, the order of the district court is vacated and the
case remanded for further proceedings consistent with this
opinion." Young v. Kenley, 614 F.2d
, 374 (1979).
It would thus seem that the Court of Appeals for the Fourth
Circuit implicitly recognized that its so-called Bonnes test
conflicted with that followed by the Court of Appeals for the First
Circuit in Nadeau v. Helgemoe, 581 F.2d
(1978). The District Court on remand certainly treated the
Court of Appeals' brief per curiam opinion as having this effect:
"[I]t is apparent from the language of the . . . per curiam
memorandum vacating and remanding this case, that a Nadeau analysis
is inappropriate in this Circuit. A Bonnes analysis is required."
485 F. Supp., at 366.
The District Court, attempting to follow the "Bonnes analysis,"
again declined to award attorney's fees. Upon a second appeal, the
Fourth Circuit reversed outright the denial of attorney's fees. It
found that Young had obtained discernible benefits which she did
not have before the suit was initiated: backpay and
reclassification of her position to level " C." 641 F.2d
. That the receipt of these benefits was "caused" by the
suit was evident to the Court of Appeals from the fact of
settlement : "[S]ettlement in the midst of trial demonstrates
[that] the lawsuit and the benefits obtained are causally related."
Ibid. Thus, by filing a lawsuit to change a regulation which had
already been changed, to obtain a promotion for which she had
already qualified at the invitation of the State, and to receive
other benefits which the District Court found were available upon
informal request, Young became entitled to attorney's fees as a
prevailing party under the standard adopted by the Court of Appeals
for the Fourth Circuit.
Page 455 U.S.
A different approach to 1988, and one which demonstrates the
divergence of views among the Courts of Appeals, is that set forth
by the Court of Appeals for the First Circuit in Nadeau v.
Helgemoe, supra. Like the Bonnes test, the Nadeau test requires
that the lawsuit result in some discernible benefit to the
plaintiff. Unlike the Bonnes test, the Nadeau test also requires
that the benefit have some basis in law:
"Even if plaintiffs can establish that their suit was causally
related to the defendants' actions which improved their condition,
this is only half of their battle. The test they must pass is legal
as well as factual. If it has been judicially determined that
defendants' conduct, however beneficial it may be to plaintiffs'
interests, is not required by law, then defendants must be held to
have acted gratuitously and plaintiffs have not prevailed in a
legal sense." 581 F.2d, at 281.
Under this second requirement of the Nadeau test, it is doubtful
that Young would have prevailed in her request for attorney's fees.
Because the law already entitled her to every benefit she was
seeking by litigation, it cannot be said that the benefits received
in settlement were legally caused by her lawsuit. [Footnote 3
In my view, the standard adopted by the Court of Appeals for the
First Circuit in Nadeau more closely approaches the
Page 455 U.S.
intent of Congress in amending 1988 than does the Bonnes
standard of the Court of Appeals for the Fourth Circuit. When it
passed the Act, Congress was aware that "[t]he effective
enforcement of Federal civil rights statutes depends largely on the
efforts of private citizens," H.R.Rep.No. 94-1558, p. 1 (1976), and
that "a vast majority of the victims of civil rights violations
cannot afford legal counsel [and] are unable to present their cases
to the courts." Ibid. Accordingly, the Act was passed to encourage
the "vigorous enforcement of modern civil rights legislation," S.
Rep.No.94-1011, p. 4 (1976), U.S.Code Cong. & Admin.News 1976,
p. 5911, by " 'private attorney[s] general' advancing the rights of
the public at large, and not merely some narrow parochial
interest." 122 Cong.Rec. 35122 (1976) (remarks of Rep. Drinan,
It is clear beyond peradventure that unless an action brought by
a private litigant contains some basis in law for the benefits
ultimately received by that litigant, the litigant cannot be said
to have "enforced" the civil rights laws or to have promoted their
policies for the benefit of the public at large. The Bonnes
standard, at least as applied in No. 80-2153, seems largely to
disregard this central purpose of 1988, awarding attorney's fees
even if the discernible benefit was conferred gratuitously by the
defendant or was undertaken simply to avoid further litigation
expenses. I would grant certiorari in one or both of these cases to
resolve the conflict among the Circuits and to establish a standard
consistent with the purposes of the Act.
portion of 42 U.S.C. 1988 provides:
"In any action or proceeding to enforce a provision of sections
1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public
Law 92-318 [ 20 U.S.C. 1681 et seq.], or in any civil action or
proceedings, by or on behalf of the United States of America, to
enforce, or charging a violation of, a provision of the United
States Internal Revenue Code, or title VI of the Civil Rights Act
of 1964 [42 U.S.C. 2000d et seq.], 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."
Section 706(k) of
Title II of the Civil Rights Act of 1964 provides in full: "In any
action or proceeding under this title the court, in its discretion,
may allow the prevailing party, other than the Commission or the
United States, a reasonable attorney's fee as part of the costs,
and the Commission and the United States shall be liable for costs
the same as a private person." 42 U.S.C. 2000e-5(k).
The Nadeau test
does not require a finding that the plaintiff would have prevailed
on the merits, nor does it require the trial court to hold the very
trial which the settlement was intended to avoid. As the Court of
Appeals explained, at the time of settlement the trial court in
most cases will have had "sufficient exposure to the facts and law
. . . to determine, whether if the plaintiffs had continued to
press their claims . . ., their action could be considered
'frivolous, unreasonable, or groundless, or that the plaintiff
continued to litigate after it clearly became so.' If the court
reaches that conclusion, we think it should deny plaintiffs'
attorney's fees on those issues regardless of the impact of their
suit on defendants' willingness to improve the conditions of . . .
the plaintiff class." 581 F.2d, at 281 (citation omitted), quoting
Christiansburg Garment Co. v. EEOC, 434 U.S.
, 422, 701 (1978).