Juan Manuel Morales v. City of San Rafael and Daniel Hulett

REINHARDT, Circuit Judge:

This case involves a dispute as to the proper method of determining a reasonable attorney’s fee for a prevailing civil rights plaintiff. The history of the case is as follows:

Morales sued the City of San Rafael (“City”) and a San Rafael police officer, Sergeant Daniel Hulett, alleging that Hulett unlawfully arrested Morales without an arrest warrant and without probable cause in violation of 42 U.S.C. § 1988 and state law. Based upon Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the district court dismissed Morales’ § 1983 claim against the City and granted summary judgment as to that claim in the City’s favor. The City remained a defendant with respect to Morales’ state law claims. At trial, the jury returned a special verdict in Morales’ favor and awarded $17,500 in damages.

*361Hulett and the City moved to set aside the verdict. The district court granted the motion and entered a JNOV. Morales appealed and this court found that substantial evidence supported the jury’s verdict and reinstated the verdict in a memorandum disposition. We remanded for entry of judgment in favor of Morales on the jury’s verdict and for determination of Morales’ claim for attorney’s fees for work performed in the district court.

Morales moved the district court for an award of fees in the amount of $139,783.25,1 and the district court conducted a hearing at which the defendants suggested $50,000 as a reasonable fee to be awarded the plaintiff. The district court requested additional briefing as to what amount would constitute a reasonable fee. In their subsequent brief, the defendants suggested three different methods of determining a reasonable fee award, only one of which required calculating a lodestar figure, producing three different suggested reasonable fees: $7,000 or $14,-974.73, or between $25,000 and $50,000.

Relying on Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), the district court concluded that Morales should be awarded “low” attorney’s fees and that Farrar gave it the authority to set a “low” fee award without calculating a lodestar figure and without reciting the twelve factors that bear on the reasonableness of a fee award. Having engaged in no mathematical calculation and offering very little explanation of how it decided on a monetary figure, the district court awarded Morales $20,000 in attorney’s fees, just forty percent of what the defendants originally suggested.

In addition to attorney’s fees, the district court held that Morales was entitled to recover costs in the amount of $8,119.16 from Hulett and that the City was entitled to recover costs in the amount of $2,708.04 from Morales. The district court justified its imposition of costs against Morales on the grounds that Morales prevailed only against Hulett and only on the § 1983 claim and that “[i]t follows that City of San Rafael has prevailed fully against Morales.”

Morales now appeals his attorney’s fee award and the imposition of costs against him.

ANALYSIS

I.

The district court misinterpreted this court’s memorandum disposition when it concluded that we “revived the verdict only as to the 42 U.S.C. § 1983 claim.” Accordingly, it improperly concluded that the City was a prevailing party deserving of costs.

On remand, the district court awarded costs to the City based on its conclusion that the City had prevailed “fully” against Morales. However, the City prevailed only as to Morales’ § 1983 claim against it and remained a party to the action after summary judgment was granted in its favor on that claim. The jury verdict reinstated by this court was rendered in favor of Morales on his state law claims against the City.

Nowhere in our memorandum disposition do we state that only part of the jury’s verdict should be reinstated. To the contrary, we reversed the district court’s order granting JNOV and remanded the ease for entry of judgment in favor of Morales consistent with the jury’s verdict. The last paragraph of our order reads as follows:

Substantial evidence supported the jury’s verdict; the district court erred in granting JNOV. We reverse and remand. On remand, the district court shall enter judgment in favor of Morales on the jury’s *362verdict and proceed to determine Morales’ request for attorney’s fees.

The City obviously understood that our reinstatement of the jury’s verdict made it the losing party as to the state law claims against it, as evidenced by the fact that it filed a petition for rehearing on its own behalf, as well as on behalf of Hulett, and referred throughout the petition both to “the CITY and HULETT.” Because the City was not a prevailing party eligible for costs under Federal Rule of Civil Procedure 64(d)(1), the district court erred in awarding it costs.2

II.

We review an award of attorney’s fees for an abuse of discretion. Corder v. Brown, 25 F.3d 833, 836 (9th Cir.1994) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)). “Any elements of legal analysis which figure in the district court’s decision are, however, subject to de novo review.” Corder, 25 F.3d at 836. Thus, we will overturn a district court’s fee award if it is based on an inaccurate view of the law. Corder v. Gates, 947 F.2d 374, 377 (9th Cir.1991).

Here, in determining the fee award, the district court relied on Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), a case in which the Supreme Court considered the issue “whether a civil rights plaintiff who receives a nominal damages award is a ‘prevailing party’ eligible to receive attorney’s fees under 42 U.S.C. § 1988,” id. at 105, 113 S.Ct. at 570. The district court read Farrar as standing for the proposition that “zero or low attorney’s fees” should generally be awarded to § 1983 plaintiffs who receive damages awards that constitute a relatively small portion of the damages they seek. Instead of following the practice courts are generally required to follow when calculating attorney’s fees in civil rights cases — i.e. computing a lodestar figure and then, if necessary, making adjustments to that figure based upon reasonableness factors — the district court basically “reasoned” to what it thought was an appropriate fee in light of the fact that Morales received only $17,500 in compensatory damages. Seemingly trying to avoid a figure “too much more” than the damages award, the district court awarded Morales $20,000 for attorney’s fees.

The district court erred in its application of Farrar in this case. At the most general level, Farrar stands for the uncontroversial principle that “[i]t is an abuse of discretion for the district court to award attorneys’ fees without considering the relationship between the ‘extent of success’ and the amount of the fee award.” McGinnis v. Kentucky Fried Chicken of California, 51 F.3d 805, 810 (9th Cir.1994) (quoting Farrar, 506 U.S. at 115-16, 113 S.Ct. at 575).3 That overall rule, requiring that the district court take into account the results obtained in the action, applies in all § 1988 cases as was properly recognized by the district court in this case. Id. See also Corder v. Brown, 25 F.3d 833, 836-837 (9th Cir.1994); Harris v. Marhoefer, 24 F.3d 16, 18-19 (9th Cir.1994).

However, Farrar also stands for a more limited proposition, and it is in the application of this narrow second ruling that the district court erred in this case. In Farrar, the Supreme Court created an exception to the general rule governing a district court’s calculation of attorneys’ fees. The Court held that “nominal damages” cases in which the relief is de minimis are exempted from the general requirements that govern the calculation of attorney’s fees, including the requirement that a lodestar first be calculated. 506 U.S. at 116-18, 113 S.Ct. at 576 (O’Connor, J., concurring).4 The *363Farrar exception, which would allow the court to dispense with the calculation of a lodestar and simply establish a low fee or no fee at all, is limited to cases in which the civil rights plaintiff “prevailed” but received only nominal damages and achieved only “technical” success. Id.

Morales’ damages award of $17,500 in compensatory damages, while substantially less than what he sought,5 was not nominal.6 Because the Farrar exception is inapplicable to cases in which the damages are not nominal, the district court erred in invoking it here.

In addition, even if Morales’ damages award were nominal, the Farrar exception would not be applicable here. Whether the plaintiffs “success is purely technical or de minimis,” id. at 117, 113 S.Ct. at 576 (O’Con-nor, J., concurring), is determined by examining other factors in addition to the amount of money damages awarded. Primary among such other considerations is “the significance of the legal issues on which the plaintiff claims to have prevailed” and the “public purpose” the plaintiffs litigation served. Id. In her concurring opinion, Justice O’Connor makes it clear that not all nominal damages awards are de minimis. Farrar, 506 U.S. at 121, 113 S.Ct. at 578 (“Nominal relief does not necessarily a nominal victory make.”). Moreover, her opinion emphasizes that, although “a substantial dif-ferenee between the judgment recovered and the recovery sought” may suggest that the plaintiffs victory is purely technical, “[t]he difference between the amount recovered and the damages sought is not the only consideration.” Id. “An award of nominal damages can represent a victory in the sense of vindicating rights even though no actual damages are proved.” Id. As we explain later, Morales achieved a significant nonmon-etary result not only for himself but for the community in general.7

III.

The customary method of determining fees, which the district court should have used here, is known as the lodestar method. “The lodestar determination has emerged as the predominate element of the analysis” in determining a reasonable attorney’s fee award. Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir.1987). The “lodestar” is calculated by multiplying the number. of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate. McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir.1995). After making that computation, the district court then assesses whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr factors8 *364that are not already subsumed in the initial lodestar calculation.9 Id.; Cunningham v. County of Los Angeles, 879 F.2d 481, 487 (9th Cir.1988), cert. denied, 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed.2d 773 (1990). That is the procedure the district court was required to follow here.10

If the district court had employed the proper method of determining what constitutes a reasonable attorney’s fee award and had calculated a lodestar figure, it would have been required to consider the amount of damages Morales was awarded in assessing the overall results obtained from the litigation. The district court was not only free but obligated to consider “the results obtained” by Morales, or “the extent of [his] success,” Hensley v. Eckerhart, 461 U.S. 424, 436, 440, 103 S.Ct. 1933, 1942, 1943, 76 L.Ed.2d 40 (1983) in calculating the lodestar figure. McGinnis, 51 F.3d at 810 (stating that the number of hours used to calculate the lodestar figure must be “reasonable in relation to the success achieved”). See also Farrar, 506 U.S. at 114-16, 113 S.Ct. at 575.

However, the amount of damages recovered by Morales is not the sole indicator of the extent of his success. See Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 2694, 91 L.Ed.2d 466 (1986) (plurality opinion) (“[A] civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms.”); Quesada v. Thomason, 850 F.2d 537, 540 (9th Cir.1988).11 Morales’ nonmone-tary success was significant. The jury held both the City and the officer involved responsible for his unlawful arrest. Because it assessed damages against the defendants, the verdict established a deterrent to the City, its law enforcement officials and others who establish and implement official policies governing arrests of citizens. Thus, it served the public purpose of helping to protect Mor*365ales and persons like him from being subjected to similar unlawful treatment in the future. For this reason, the district court made an explicit finding in its fee-setting order that Morales’ litigation served a significant public policy interest, stating that the verdict “constitutes a warning to law-enforcement officers not to treat civilians unconstitutionally.” Thus, in determining a reasonable fee award on remand, the district court should consider not only the monetary results but also the significant nonmonetary results Morales achieved for himself12 and other members of society.

CONCLUSION

The Farrar exception to the general rule requiring the district court to calculate the lodestar figure to determine an attorney’s fee applies only to nominal damages eases in which the plaintiffs success is de minimis. Success is measured not only by the amount of the recovery but also in terms of the significance of the legal issue on which the plaintiff prevailed and the public purpose the litigation served. Because the monetary award was not nominal and because Morales’ success was not minimal, this case does not fit within the Farrar exception. We vacate the attorney’s fee award and remand for a new fee determination to be made in the manner explained in Section III.

We vacate the award of costs to the City because the City was not a prevailing party eligible for costs, and conclude that, to the contrary, the City is liable to Morales for costs.

REVERSED AND REMANDED.

. Morales arrived at this figure by calculating a lodestar figure-multiplying the hourly rates of the attorneys who worked on the case by the number of hours they each expended-and then reducing that figure by the time expended on the unsuccessful Monell claim, 173.2 hours at $30,380.

Hourly Number
Attorney Rate of Hours
Peter B. Brekhus $255 266.25
Barry F. Wester $175 81.4
Matthew Brekhus $155 151.3
Linda J. Philipps $155 413.6
Kirk E. Wallace $135 25.4
Morales’ motion included extensive and detailed explanations as to why the lodestar figure of $134,759.75 was a reasonable fee in this case. The final figure of $139,783.25 includes Morales’ calculation of $5,023.50 in fees for attorney time expended in district court after the motion for fees was filed.

. We do not intend to criticize the district court in this respect and recognize that its error on remand may have resulted at least in part from the fact that our memorandum disposition was not as clear as it might have been.

. In McGinnis we held that the district court erred when it expressly refused to consider the amount of actual damages in determining the extent of the plaintiff’s success. Id. at 810 (holding that district court erred in deciding that it would not reconsider its attorney’s fee award if the plaintiff's damages award were reduced from $234,000 to $34,000).

. Justice O'Connor concurred in the majority opinion written by Justice Thomas, supplying the necessary fifth vote, but then wrote separately to explain "more fully” her view of the majority’s holding. See infra note 7.

. Morales’ counsel asked the jury to award between $150,000 and $250,000.

. Morales’ award is in stark contrast to the "one seventeen millionth” Farrar received. Id., at 121, 113 S.Ct. at 578. (Farrar sought $17 million in damages, but received an award of $1.) While Farrar does not prohibit fee awards for plaintiffs who receive nominal damages, Wilcox v. Reno, 42 F.3d 550, 555, 556 (9th Cir.1994), it is readily apparent from considering those damages awards this court has deemed "nominal” that Morales did not receive nominal damages. See, e.g., Romberg v. Nichols, 48 F.3d 453, 454 (9th Cir.1995) (each plaintiff awarded one dollar after seeking $2 million in general punitive damages), cert. denied, - U.S. -, 116 S.Ct. 379, 133 L.Ed.2d 303 (1995); Wilcox, 42 F.3d at 554 (plaintiff obtained judgment of one dollar); Forrester v. San Diego, 25 F.3d 804, 809 (9th Cir.1994) (plaintiffs did not procure relief), cert. denied, - U.S. -, 115 S.Ct. 1104, 130 L.Ed.2d 1070 (1995); Wilks v. Reyes, 5 F.3d 412, 417 (9th Cir.1993) (plaintiff awarded one dollar in nominal damages).

. The analysis outlined above parallels the approach adopted by at least two other circuits which have addressed the same issue. For example, the Seventh Circuit has expressly adopted a three-part test, derived directly from Justice O’Connor’s Farrar concurrence, for determining “whether a prevailing party has achieved a mere technical victory inappropriate for fees.” Johnson v. Lafayette Fire Fighters Ass’n Loc. 472, 51 F.3d 726 (7th Cir.1995) (citing Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir.1993)). See also Jones v. Lockhart, 29 F.3d 422, 423-424 (8th Cir.1994); A.J. by L.B. v. Kierst, 56 F.3d 849, 863 (8th Cir.1995); Milton v. Des Moines, Iowa, 47 F.3d 944, 946 (8th Cir.1995).

. The twelve Kerr factors bearing on the reasonableness are:

(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee *364is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.

Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976).

There is a strong presumption that the lodestar figure represents a reasonable fee. "Only in rare instances should the lodestar figure be adjusted on the basis of other considerations.” Harris v. Marhoefer, 24 F.3d 16, 18 (1994); Oviatt v. Pearce, 954 F.2d 1470, 1482 (9th Cir.1992). Under the lodestar approach, many of the Kerr factors have been subsumed as a matter of law. Cunningham, 879 F.2d at 487.

. Among the subsumed factors presumably taken into account in either the reasonable hours component or the reasonable rate component of the lodestar calculation are: "(1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation, ... (4) the results obtained,” Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th Cir.1988), reinstated, 886 F.2d 235 (1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1838, 108 L.Ed.2d 966 (1990), and (5) the contingent nature of the fee agreement, City of Burlington v. Dague, 505 U.S. 557, 565-67, 112 S.Ct. 2638, 2643, 120 L.Ed.2d 449 (1992).

Adjusting the lodestar on the basis of subsumed reasonableness factors after the lodestar has been calculated, instead of adjusting the reasonable number of hours or reasonable hourly rate at the first step, i.e. when determining the lodestar, is a disfavored procedure. Corder v. Gates, 947 F.2d at 378. However, as long as the district court only makes one adjustment per factor, either before or after the lodestar calculation, we have found such an error to be harmless. Id.; Cabrales, 864 F.2d at 1465.

. The district court was correct that it need not "recite” the twelve Kerr factors, McGinnis v. Kentucky Fried Chicken of California, 51 F.3d 805, 809 (9th Cir.1994). The requirement is simply that it consider those factors not already subsumed in the lodestar figure.

. The plurality opinion in Riverside expressly "reject[ed] the proposition that fee awards under § 1988 should necessarily be proportionate to the amount of damages a civil rights plaintiff actually recovers.” Id. at 574, 106 S.Ct. at 2694 (affirming award of $245,456.25 in attorney's fees in civil rights litigation in which plaintiff prevailed against the city and police officers receiving $13,300 in damages). Likewise, we have repeatedly made it clear that the level of success achieved by a civil rights plaintiff should be measured by more than the amount of damages awarded. Larez v. Holcomb, 16 F.3d 1513, 1523 (9th Cir.1994) (holding that possible reduction of damages award on remand "should not necessarily” lead the district court to reduce the attorney’s fee award); Quesada, 850 F.2d 537, 539 (9th Cir.1988) (holding that "court should not reduce lodestars based on relief obtained simply because the amount of damages recovered on a claim was less than the amount requested”).

. The district court should, as we stated in McGinnis, consider what Morales’ attorney did for his “actual client.” Id. at 810. However, the assessment of the “results obtained” by the actual client in a civil rights action should not be limited to the damages award that person received but also requires consideration of the non-monetary benefits the plaintiff personally gains from the lawsuit. Moreover, as McGinnis makes clear, the benefit received by the client is only "an important measure of ‘extent of success,’ ” and must be considered along with "the benefits [conferred] on others throughout society by winning a civil rights claim.” Id. (emphasis added).