Boston's Children First v. City of Boston

United States Court of Appeals
For the First Circuit

No. 03-2470

BOSTON'S CHILDREN FIRST, et al.,

Plaintiffs, Appellants,

v.

CITY OF BOSTON, et al.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Lipez, and Howard, Circuit Judges.

Robert J. Roughsedge, with whom Michael Williams, Chester
Darling, and CPCR: Citizens for the Preservation of Constitutional
Rights, Inc. were on brief, for appellants.
Frances S. Cohen, with whom Erica L. Hovani and Dechert LLP
were on brief, for appellees.

January 18, 2005
 LIPEZ, Circuit Judge. Plaintiffs, a non-profit

organization1 and ten white children living in Boston, challenged

the City's former and current school assignment systems in a case

that the district court noted "may possibly be the concluding

chapter in thirty years of litigation over the effort to

desegregate the Boston public schools." Boston's Children First v.

Boston Sch. Comm., 260 F. Supp. 2d 318, 319 (D. Mass. 2003). In

rulings that we recently affirmed, the district court rejected the

majority of the plaintiffs' claims but awarded nominal damages to

two children who were denied seats at their preferred schools

because of their race. See Anderson v. City of Boston, 375 F.3d 71

(1st Cir. 2004). Plaintiffs2 then sought attorney's fees as a

"prevailing party" under 42 U.S.C. § 1988. The district court

denied the motion, finding that the plaintiffs' de minimis success

on the nominal damages claim did not entitle them to a fee award.

For the reasons set forth below, we affirm.

1
The non-profit organization, Boston's Children First ("BCF"),
was a party to the original suit but the court subsequently
concluded that it lacked organizational standing. Boston's
Children First v. Boston Sch. Comm., 183 F. Supp. 2d 382, 402 (D.
Mass. 2002).
2
We recognize that the reference to "plaintiffs" in this
decision could be a source of confusion. When we refer to
"plaintiffs" in describing the background of this case, we are
referring to all the plaintiffs who initiated the underlying suit.
However, when we discuss the plaintiffs who were prevailing parties
in this litigation, we refer only to the two plaintiffs who were
awarded nominal damages.

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 I.

Plaintiffs initiated the underlying suit on June 21,

1999, challenging the Boston Public Schools ("BPS") Controlled

Choice Student Assignment Plan ("Old Plan") on the grounds that it

improperly considered students' race when assigning them to schools

in an effort to achieve "ideal racial percentages."3 The

plaintiffs sought a declaration that the Old Plan violated their

federal and state equal protection rights, as well as injunctive

relief and damages.

On July 14, 1999, the Boston School Committee voluntarily

amended the Old Plan to eliminate race as a factor in the school

admissions process ("New Plan"). The plaintiffs responded by

adding a plethora of claims to their suit. They ultimately sought

(1) a declaratory judgment that both Plans violated the Fourteenth

Amendment's Equal Protection Clause, 42 U.S.C. §§ 1981 and 1983,4

3
As noted, the litigation for which plaintiffs now seek
attorney's fees is part of a long saga involving the desegregation
of Boston's public school system. See, e.g., Wessmann v. Gittens,
160 F.3d 790 (1st Cir. 1998). For a more complete history of the
suit brought by the plaintiff children and BCF, see Boston's
Children First v. City of Boston, 62 F. Supp. 2d 247 (D. Mass.
1999) ("BCF I"); Boston's Children First v. City of Boston, 98 F.
Supp. 2d 111 (D. Mass. 2000) ("BCF II"); Boston's Children First v.
Boston Sch. Comm., 183 F. Supp. 2d 382 (D. Mass. 2002) ("BCF III");
Boston's Children First v. Boston Sch. Comm., 260 F. Supp. 2d 318
(D. Mass. 2003) ("BCF IV"); Boston's Children First v. Boston Sch.
Comm., No. 99-11330-RGS (D. Mass. May 27, 2003) (unpublished) ("BCF
V"); Anderson v. City of Boston, 375 F.3d 71 (1st Cir. 2004).
4
42 U.S.C. §§ 1981 and 1983 prohibit deprivations of
constitutional rights under color of state law.

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Title VI of the Civil Rights Act of 1964,5 and Article 111 of the

Massachusetts Declaration of Rights;6 (2) a permanent injunction

ordering BPS to admit plaintiffs to the schools of their choice,

prohibiting BPS from considering race in school assignments and

governance, ordering BPS to redraw attendance zones, and granting

BCF access to school records to monitor BPS's compliance with these

orders; and (3) nominal and compensatory damages for plaintiffs who

were not admitted to their preferred schools under the Old Plan.

In February 2002, the district court ruled that it would

consider the plaintiffs' damages claim separately from their claims

for prospective relief. The plaintiffs filed a motion for summary

judgment on the damages claim on November 1, 2002, seeking nominal

damages for all ten student-plaintiffs. That motion noted that the

defendants had admitted earlier in the litigation that two

students, John Feeney, Jr. and Kathleen McCoy, were denied seats

based on their race under the Old Plan.7 It also emphasized that

the defendants had not conceded that the Old Plan was

5
Title VI prohibits institutions receiving federal funds from
engaging in racial discrimination. 42 U.S.C. § 2000d.
6
Article 111 states that "[n]o student shall be assigned to or
denied admittance to a public school on the basis of race, color,
national origin or creed."
7
The defendants initially conceded in November 2000 that three
students' placements were affected by race. In August 2001, they
retracted the admission regarding one student, Kayleigh Barry-
Meltzer, explaining that it had been based on a mistaken assumption
regarding the seating capacity at her preferred school.

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unconstitutional. The parties then entered into unsuccessful

settlement discussions, with the defendants expressing a

willingness to pay "nominal damages" to Feeney and McCoy but an

unwillingness to address the plaintiffs' additional request that

they admit the Old Plan had been unconstitutional. The court

ultimately granted the defendants an extension for responding to

the summary judgment motion, allowing them to file their opposition

after a bench trial on the plaintiffs' claims for prospective

relief.

Over the course of four rulings between 1999 and 2003,

the district court rejected all of the plaintiffs' claims for

prospective relief. BCF I, 62 F. Supp. 2d at 262; BCF II, 98 F.

Supp. 2d at 117; BCF III, 183 F. Supp. 2d at 395-401; BCF IV, 260

F. Supp. 2d at 334. In the last of these rulings, following the

bench trial, the court upheld the New Plan against the plaintiffs'

equal protection challenge and declined to retain jurisdiction to

ensure that BPS did not return to using race in its seat assignment

policy. BCF IV, 260 F. Supp. 2d at 330-34. The court concluded by

noting that

[P]laintiffs should not underestimate what they have
accomplished. By bringing this lawsuit, they have
persuaded the School Committee to abandon a
constitutionally dubious school admissions policy.
Plaintiffs have not obtained all of the relief they
sought, principally because the court believes that their
ultimate goal, mandatory neighborhood school assignments
. . . is not constitutionally compelled.

Id. at 334.

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 With the plaintiffs' claims for prospective relief thus

resolved, the parties returned to the issue of nominal damages. In

their May 21, 2003 response to the plaintiffs' motion for summary

judgment, the defendants again conceded that Feeney and McCoy had

been denied seats based on their race and indicated that they were

"willing to have this Court enter judgment awarding nominal damages

to these plaintiffs." However, asserting that no damages may be

awarded absent the deprivation of a constitutional right, the

defendants opposed a nominal damages award for the eight plaintiffs

who had not shown that they were deprived of a seat based on their

race. The defendants also urged the court not to address the

constitutionality of the Old Plan.

The court's May 27, 2003 ruling on the motion for summary

judgment awarded nominal damages to Feeney and McCoy on the grounds

that they "were denied seat assignments at their preferred schools

because of their race" but without expressly stating whether the

Old Plan was unconstitutional. BCF V, at 1. Stressing that

nominal damages may not be awarded "absent the deprivation of a

constitutional right," the court denied damages to the remaining

plaintiffs, who could "make no showing of a deprivation under Texas

v. Lesage, 528 U.S. 18, 21 (1999) (per curiam)." BCF V, at 1.

Although the plaintiffs who were denied damages appealed that

denial, the defendants did not cross-appeal from the nominal

damages award.

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 The plaintiffs then moved for attorney's fees under 42

U.S.C. § 1988(b), which provides that in a federal civil rights

suit, "the court, in its discretion, may allow the prevailing party

. . . a reasonable attorney's fee as part of the costs." The

district court acknowledged that "a plaintiff who wins an award of

nominal damages is properly deemed a 'prevailing party.'"

Nevertheless, it denied any attorney's fees, concluding that:

While "hollow" may be too harsh a word, a one dollar
nominal award to two of ten original plaintiffs, the
entitlement to which was conceded by the defendants from
the virtual outset in an otherwise unsuccessful lawsuit,
will simply not bear the weight of the policy that
Congress intended to promote by enacting section 1988.

This appeal followed.

II.

Because a trial judge familiar with the intricacies of a

case is in the best position to evaluate a motion for attorney's

fees, we review the denial of such a motion for manifest abuse of

discretion. See Díaz-Rivera v. Rivera-Rodríguez, 377 F.3d 119, 124

(1st Cir. 2004). Accordingly, we "confine our review to whether

the district court has made a mistake of law or incorrectly weighed

(or failed to weigh) a factor in its decision." Richardson v.

Miller, 279 F.3d 1, 3 (1st Cir. 2002); see also Gay Officers Action

League v. Puerto Rico, 247 F.3d 288, 292-93 (1st Cir. 2001) ("Apart

from mistakes of law . . . we will set aside a fee award only if it

clearly appears that the trial court ignored a factor deserving

significant weight, relied upon an improper factor, or evaluated

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all the proper factors (and no improper ones), but made a serious

mistake in weighing them.").

A. Fee-shifting pursuant to 42 U.S.C. § 1988

"In the United States, the prevailing litigant is

ordinarily not entitled to collect a reasonable attorneys' fee from

the loser." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421

U.S. 240, 247 (1975). Congress, however, has created exceptions to

this "American Rule," permitting fee-shifting in some contexts to

encourage meritorious litigation that benefits the plaintiff and

the public interest. See Blanchard v. Bergeron, 489 U.S. 87, 96

(1989). 42 U.S.C. § 1988 is one such exception. As previously

noted, § 1988(b) provides that in federal civil rights actions,

including those brought under 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."

Section 1988 requires a two-part inquiry: (1) whether the

plaintiff is a prevailing party, and (2) if the plaintiff is a

prevailing party, what constitutes a reasonable fee award. See,

e.g., Farrar v. Hobby, 506 U.S. 103, 114 (1992). The first inquiry

has substantial implications because, despite § 1988's

discretionary language, we have interpreted the statute to mean

that "'awards in favor of prevailing civil rights plaintiffs are

virtually obligatory.'" Díaz-Rivera, 377 F.3d at 124 (quoting Gay

Officers Action League, 247 F.3d at 293); see also Casa Marie Hogar

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Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir. 1994)

("prevailing plaintiff is presumptively entitled to fee-shifting"

in a civil rights case). Still, a court may properly deny a

prevailing party's motion for attorney's fees if circumstances of

the case would make a fee award unjust. Farrar, 506 U.S. at 118

(O'Connor, J., concurring); Hensley v. Eckerhart, 461 U.S. 424, 429

(1983).

B. Prevailing party status

To prevail, a party must "'succeed on any significant

issue in litigation which achieves some of the benefit [it] sought

in bringing suit.'" Hensley, 461 U.S. at 433 (quoting Nadeau v.

Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). A voluntary

change in conduct due to the filing of the suit itself is not

sufficient to confer prevailing party status. Buckhannon Bd. &

Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S.

598, 600-10 (2001) (rejecting the "catalyst theory" as a basis for

prevailing party status); New Eng. Reg'l Council of Carpenters v.

Kinton, 284 F.3d 9, 29-30 (1st Cir. 2002). Rather, the benefit

achieved must be a "judicially sanctioned change in the legal

relationship between the parties." Buckhannon, 532 U.S. at 605.

The district court correctly concluded that prevailing

party status cannot be based on the School Committee's decision to

amend the Old Plan, and plaintiffs do not argue to the contrary.

Although eliminating race in the seat assignment plan was one of

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the plaintiffs' central goals in bringing the suit, a fee award

based on the School Committee's voluntary actions would rest on the

"catalyst theory" that the Supreme Court explicitly rejected in

Buckhannon. See 532 U.S. at 610. The plaintiffs claim instead

that the nominal damages award makes them a prevailing party. We

agree.

The Supreme Court has held that "a plaintiff who wins

nominal damages is a prevailing party under § 1988." Farrar, 506

U.S. at 112. This holding recognizes that nominal damages are a

"material alteration of the legal relationship between the parties"

because "[a] judgment for damages in any amount, whether

compensatory or nominal, modifies the defendant's behavior for the

plaintiff's benefit by forcing the defendant to pay an amount of

money he otherwise would not pay." Id. at 113. Here, the district

court ordered the defendants to pay nominal damages to two

plaintiffs, Feeney and McCoy. As Farrar recognized, that order

"materially alter[ed] the legal relationship between the parties,"

and thus conferred prevailing party status on the plaintiffs. Id.

at 112.

In support of their argument that our case law dictates

a contrary result on the prevailing party issue, the defendants

cite Maine School Administrative District No. 35 v. Mr. R., 321

F.3d 9 (1st Cir. 2003). There, we explained that "the change

effected [by the plaintiff's success] must be material; a purely

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technical or de minimis victory cannot confer prevailing party

status." Id. at 15; see also Farrar, 506 U.S. at 111-12 ("[A]

plaintiff 'prevails' when actual relief on the merits of his claim

materially alters the legal relationship between the parties by

modifying the defendant's behavior in a way that directly benefits

the plaintiff."). It is true that many of our cases, including

Maine School Administrative District No. 35, consider the

"technical" or "de minimis" nature of a victory as part of the

prevailing party inquiry, rather than in determining what

constitutes a reasonable award. 231 F.3d at 15. However, the

Supreme Court's holding in Farrar precludes any argument that an

award of nominal damages is "a purely technical or de minimis

victory" that bars prevailing party status. Id.

In Farrar, the Court specifically considered "whether a

nominal damages award is the sort of 'technical,' 'insignificant'

victory that cannot confer prevailing party status." 506 U.S. at

113-14. As we have already discussed, the Court answered this

question in the negative, concluding that nominal damages effect a

material change and therefore confer prevailing party status. The

"'technical' nature of a nominal damages award" bears instead on

the reasonableness of the fees awarded rather than on prevailing

party status, and the district court's analysis proceeded

accordingly. Id. at 114.

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C. Reasonable attorney's fee

The plaintiffs emphasize that we are "virtually

obligat[ed]" to grant a fee award to a prevailing party. Gay

Officers Action League, 247 F.3d at 293. However, as Farrar itself

acknowledges, "[i]n some circumstances, even a plaintiff who

formally 'prevails' under § 1988 should receive no attorney's fees

at all." 506 U.S. at 115.

Farrar was a § 1983 civil rights suit in which a

plaintiff sought $17 million in damages against six defendants who

had allegedly conspired to violate his due process rights. A jury

found that one of the defendants had "committed an act or acts

under color of state law that deprived [Farrar] of a civil right,"

but that this conduct was not a proximate cause of his damages.

506 U.S. at 106. The district court awarded Farrar $1 in nominal

damages and $280,000 in attorney's fees. The Fifth Circuit

reversed the fee award, finding that Farrar's victory was too

insignificant to confer prevailing party status under § 1988.

The Supreme Court disagreed with the Fifth Circuit's

reasoning but affirmed the fee award reversal. It held that Farrar

was not entitled to fees, despite the fact that the nominal damages

award conferred prevailing party status. The Court explained that

"the most critical factor in determining the reasonableness of a

fee award is the degree of success obtained." Id. at 114 (citation

and internal quotation marks omitted). Where Farrar sought $17

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million in compensatory damages but received only $1 in nominal

damages, he obtained such a small degree of success as to make "the

only reasonable fee . . . no fee at all." Id. at 115.

Justice O'Connor wrote separately to explain the

relationship between nominal damages and a fee award. While

"[n]ominal relief does not necessarily a nominal victory

make[,] . . . a substantial difference between the judgment

recovered and the recovery sought suggests that the victory is in

fact purely technical." Id. at 121. Other relevant factors

include "the significance of the legal issue on which the plaintiff

claims to have prevailed" and whether the success furthered a

public purpose. Id. at 121-22; see also O'Connor v. Huard, 117

F.3d 12, 18 (1st Cir. 1997) (recognizing similar considerations).

Where the district court has properly weighed the foregoing

factors, there is no abuse of discretion to merit a reversal. See

id.

Here, the court explained its denial of fees in an eight-

page ruling that reviewed the course of the litigation and set

forth the relevant law. It concluded that the nominal damages

award, "the entitlement to which was conceded by the defendants

from the virtual outset," was too de minimis a victory in relation

to the plaintiffs' other claims to merit a fee award. See Farrar,

506 U.S. at 114; Me. Admin. Sch. Dist. No. 35, 321 F.3d at 14-15

(fee award cannot be based on a "hollow victory"). The plaintiffs

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claim that this ruling was an abuse of discretion because it failed

to recognize the significance of the nominal damages award --

namely, that the award included an implicit finding that the Old

Plan was unconstitutional and would thus have a preclusive effect

if the defendants attempted to revive the Plan. The defendants

contend that the award did not include such a finding.

We acknowledge that the language of the decision

explaining the nominal damages award is susceptible to both

parties' readings. The court said the following:

John Feeney[, Jr.] and Kathleen McCoy were denied seat
assignments at their preferred schools because of their
race. For that reason they are entitled to an award of
nominal damages, and defendants do not contend otherwise.
Defendants are correct, however, that absent the
deprivation of a constitutional right, nominal damages
may not be awarded. See Carey v. Piphus, 435 U.S. 247,
266-67 (1978). As the remaining plaintiffs can make no
showing of a deprivation under Texas v. Lesage, 528 U.S.
18, 21 (1999) (per curiam), no damages, nominal or
otherwise, may be awarded.

BCF V, at 1. Although the nominal damages judgment does not

specify that the Old Plan was unconstitutional, the plaintiffs

assert that such a finding was necessarily implicit in light of the

court's own statement that nominal damages must be premised on a

constitutional injury. Losing a seat assignment because of race is

not, per se, a constitutional deprivation. Race-conscious policies

are permissible if they are narrowly tailored to serve a compelling

governmental interest, which may include remedying past

discrimination, City of Richmond v. J.A. Croson Co., 488 U.S. 469,

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507 (1989) (considering whether Richmond's race-conscious plan for

city construction contracts was "narrowly tailored to remedy prior

discrimination"), or achieving educational diversity, Grutter v.

Bollinger, 539 U.S. 306, 343 (2003) ("[T]he Equal Protection Clause

does not prohibit the [University of Michigan] Law School's

narrowly tailored use of race in admissions to further a compelling

interest in obtaining the educational benefits that flow from a

diverse student body."). Thus, the plaintiffs reason, the

defendants' concession about the role of race in the plaintiffs'

seat assignments does not, standing alone, admit the constitutional

violation required to support an award of nominal damages. The

deprivation was unconstitutional only if the assignment plan was

not narrowly tailored to serve a compelling interest, or, in other

words, if the Old Plan was unconstitutional.

Yet, the nominal damages decision does not address the

issues of compelling interest and narrow tailoring that would be

integral to a fully developed legal analysis of the

constitutionality of the Old Plan. Nor did the court explicitly

state that Feeney and McCoy had suffered a constitutional injury.

Its comment that nominal damages require such an injury was not an

explanation for Feeney and McCoy's award, but rather for the denial

of damages to the remaining plaintiffs. See BCF V, at 1. Indeed,

the only basis that the court cited for Feeney and McCoy's award

was their loss of seats because of their race -- the point conceded

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by the defendants. This language suggests that the award did not

include a finding that the Old Plan was unconstitutional.

We recognized this ambiguity in the nominal damages

decision when we considered the merits of this case on appeal,

noting that "[a]lthough the district court never explicitly

described the Old Plan as unconstitutional, . . . nominal damages

in this context require a constitutional violation." Anderson, 375

F.3d at 80 n.12. Based on this logic, we accepted "the colorable

premise that the Old Plan was unconstitutional" for the purposes of

our analysis.8 Id. However, the court's ruling, if any, on the

constitutionality of the Old Plan was not directly before us in

that appeal. Now that we must decide in the context of this

attorney's fees appeal whether the court, in fact, ruled on the

constitutionality of the Old Plan, we conclude that there was no

such ruling. Instead, the court awarded nominal damages on the

basis of the defendants' concession, which acknowledged the

dispositive effect of race in the school assignments of Feeney and

McCoy, but which rejected any conclusion that the Old Plan was

unconstitutional.

8
In the appeal on the merits, the plaintiffs argued that the
unconstitutionality of the Old Plan required a presumption that the
New Plan was also motivated by a racially discriminatory purpose.
We declined to adopt such a presumption, noting that even if the
Old Plan had been unconstitutional, "BPS voluntarily discontinued
the use of the Old Plan once it concluded that the Plan was
constitutionally suspect . . . and replaced it with a racially
neutral assignment system . . . ." Anderson, 375 F.3d at 84-85.

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 This conclusion is compelled by the following

considerations:

(1) The constitutionality of the Old Plan was not

actively litigated; the court refused to consider injunctive or

declaratory relief regarding the Old Plan once the New Plan was in

place. Indeed, the court's description of the Old Plan as

"constitutionally dubious" in a ruling denying prospective relief

one month before the nominal damages award, BCF IV, 260 F. Supp. 2d

at 334, signals that it did not consider the constitutionality of

the Old Plan a resolved question.

(2) The defendants' motion opposing summary judgment,

filed soon after the decision denying prospective relief,

recognized that a finding on the constitutionality of the Old Plan

would require the court to try issues that it had not previously

considered and therefore urged the court to award damages without

reaching the constitutional issue. In essence, the defendants

expressed a willingness to pay nominal damages to Feeney and McCOy

without admitting any constitutional injury. As we have discussed,

the language of the ensuing award is consistent with this position.

(3) Any remaining ambiguity on this point is resolved by

the district court's decision denying attorney's fees. There, the

court described the basis for the plaintiffs' prevailing party

status as "a one dollar nominal award to two of ten original

plaintiffs, the entitlement to which was conceded by the defendants

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from the virtual outset . . . ." (emphasis added). Again, the

defendants had conceded only that they were willing to pay damages

because Feeney and McCoy were denied seats based on their race, not

because the Old Plan was unconstitutional. The district court's

description of its own judgment thus forecloses the plaintiffs'

argument that it found the Old Plan unconstitutional.

Viewed in this light, the nominal damages award does not

represent a victory on a significant legal issue. To the contrary,

it represents such a minimal success in the context of this

litigation that the district court supportably concluded that "the

only reasonable fee is . . . no fee at all." Farrar, 506 U.S. at

115. The district court did not abuse its discretion in denying

attorney's fees.

Affirmed.

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