(dissenting) — I respectfully dissent because neither the United States Supreme Court’s decision in Farrar v. Hobby2 nor the Washington State Supreme Court’s decision in Sintra, Inc. v. City of Seattle3 supports an award of attorney fees here.
The prevailing party in a 42 U.S.C. § 1983 action is not *123entitled to an award of fees where recovery of private damages is the sole purpose of the litigation and he or she recovers nothing. Sintra, 131 Wn.2d at 665-66. This is because when awarding attorney fees we must give primary consideration to the amount of damages awarded as compared to the amount sought. Id.
I dissent reluctantly because I do not agree with the holding in Farrar. It fails to implement both the spirit and the letter of 42 U.S.C. § 1983. It is, nonetheless, the law in this state, adopted in Sintra. I would therefore reverse the award of attorney fees.
The claim here was for relief under a federal statute, 42 U.S.C. § 1983. We are, therefore, bound by the federal interpretation of this statutory scheme. Sintra, 131 Wn.2d at 652. And the question of attorney fees, under precisely the same factual circumstances we are confronted with here, has been addressed by the United States Supreme Court in Farrar. The majority holding in Farrar is clear. A party may be technically a “prevailing party” according to 42 U.S.C. § 1988 even if he or she recovers only nominal damages. Farrar, 506 U.S. at 113. Nonetheless, the “most critical” factor for determining the reasonableness of a fee is the degree of success obtained. Id. at 114. According to the Farrar Court, where the claim is for private damages, the court must “ ‘give primary consideration to the amount of damages awarded as compared to the amount sought.’ ” Id. (quoting City of Riverside v. Rivera, 477 U.S. 561, 585, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986) (Powell, J., concurring)). The necessary conclusion from Farrar is that even though a party may be technically “a prevailing party” under § 1988, he or she is not entitled to attorney fees where the claim for compensatory damages is rejected.
Justice O’Connor concurred in the majority opinion in Farrar and provided additional grounds for the holding. She writes that “when a plaintiff’s victory is purely technical or de minimis, a district court need not go through the *124usual complexities involved in calculating attorney’s fees.” Farrar, 506 U.S. at 117 (O’Connor, J., concurring). She explains, “where the only reasonable fee is no fee, an award of fees would be unjust; conversely, where a fee award would be unjust, the reasonable fee is no fee at all.” Id. at 118. Moreover, Justice O’Connor notes that where there is no recovery, there is no award of costs. She notes that § 1988 authorizes payment of fees as part of costs; therefore, no costs, no fees. Id. at 119-20.
Justice O’Connor does argue that other factors should be considered when deciding whether to award attorney fees, like a victory which results in no monetary recovery but vindicates significant rights. Id. at 121. That position was not, however, adopted by the Farrar majority. And, more importantly, there is no finding here of vindication of any right not vindicated by any other successful § 1983 action, where only nominal damages are recovered.
The majority opinion in Farrar was accepted in toto by the Washington State Supreme Court in Sintra. Sintra, 131 Wn.2d at 664-66. It should, therefore, guide our analysis in this case. The primary factor the trial court must consider in awarding fees in a § 1983 action is the degree of success. We judge that degree of success by comparing the claims asserted and the relief sought to the results.
Aaron Ermine asked for both punitive and compensatory damages. He received no compensatory damages, and no punitive damages. The court in Sintra reversed an award of attorney fees under similar circumstances, holding:
the central issue to be addressed in its consideration of an award of attorney’s fees under § 1988 was the degree of success obtained by Plaintiffs, the court did not consider this a primary factor in its findings when entering an award.
Sintra, 131 Wn.2d at 665.
Mr. Ermine sued for $500,000. He offered to settle the case for $10,000 before trial. The case was arbitrated pursuant to mandatory arbitration rules which limit any award to $35,000. The arbitrator found for the City. Mr. Ermine *125appealed the adverse arbitration award to superior court. A jury, again, rejected his claim for both punitive and compensatory damages.
Mr. Ermine did not ask for injunctive relief. He did not ask for declaratory relief or extraordinary writs. And he made no showing either at trial or during posttrial argument over attorney fees that any of the policies of the Spokane Police Department changed, or had been so much as reconsidered, as a result of his efforts. In short, Mr. Ermine lost this lawsuit.
The later imposition of $1 nominal damages would not send a message other than this claim was not worth much and vindicated no important right. To repeat, all that was sought here was money. And the jury awarded no money.
The trial judge articulated his considerations on the questions of attorney fees, as follows:
(1) “I think I still have to consider the fact that the jury came back with a verdict in favor of Mr. Ermine.”
(2) “I still think that some fairly substantial attorney fees are appropriate[.]”
On reconsideration, the court expanded on its reasons noting that “[i]f I had not considered the factor of the damages, I would have granted substantially more attorney’s fees.” The court could not articulate because the record discloses no vindication of a substantial right. Indeed, as Justice O’Connor noted: “Such a judgment cannot deter misconduct any more than a bolt of lightning can; its results might be devastating, but it teaches no valuable lesson because it carries no discernable meaning.” Farrar, 506 U.S. at 122 (O’Connor, J., concurring).
Mr. Ermine may have made a point. But he made no more of a point than any other successful § 1983 litigant makes. And as I read Farrar and Sintra, that is not enough.
The award of attorney fees is subject to an abuse of discretion standard. The trial judge abuses that discretion when the decision is based upon unreasonable or untenable grounds. Sintra, 131 Wn.2d at 664. The trial judge abused *126his discretion here because the primary consideration required by both Farrar and Sintra was the plaintiffs degree of success. This was a claim for compensatory and punitive damages, pure and simple. The plaintiff lost at arbitration and lost again before a jury. That is not success. The trial judge, therefore, abused his discretion in awarding fees.
I therefore respectfully and, again, reluctantly dissent.
Review granted at 141 Wn.2d 1017 (2000).
506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992).
131 Wn.2d 640, 935 P.2d 555 (1997).