CORY L. THOMAS; ABDULLAH ALI; and MUHAMMAD ALEXANDER v. City of Tacoma, a municipal Nos. 03-35799 corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CORY L. THOMAS; ABDULLAH ALI;
and MUHAMMAD ALEXANDER,
Plaintiffs-Appellants-
Cross-Appellees,
v.
CITY OF TACOMA, a municipal Nos. 03-35799 corporation; TACOMA POLICE
03-35816 DEPARTMENT; BRIAN EBERSOLE;
JAMES O. HAIRSTON; RAY CORPUZ; D.C. No. 
KRISTI BUCKLIN; NATHAN CLAMMER; CV-01-05138-RBL
TERRY KRAUSE; ROBERT LUKE; OPINION
DAVID PECK; STEVE O’KEEFE;
ROBERT BAKER; JOE BUNDY;
RONALD TENNYSON; TODD TEHAR;
SHEPPARD CLARKE; KEITH MILLER;
GRANT; and ROWBOTTOM,
Defendants-Appellees-
Cross-Appellants. 
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
February 11, 2005—Seattle, Washington
Filed June 8, 2005
Before: Monroe G. McKay,* Diarmuid F. O’Scannlain, and
Carlos T. Bea, Circuit Judges.
*The Honorable Monroe G. McKay, Senior United States Circuit Judge
for the Tenth Circuit, sitting by designation.
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Opinion by Judge McKay
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COUNSEL
Lembhard G. Howell, Law Offices of Lembhard G. Howell,
P.S., Seattle, Washington, for the plaintiffs-appellants-cross-
appellees.
Jean P. Homan, Assistant City Attorney, Tacoma City Attor-
ney’s Office, Tacoma, Washington, for the defendants-
appellees-cross-appellants.
OPINION
McKAY, Circuit Judge:
This is an appeal and cross-appeal from the district court’s
denial of the parties’ respective motions for attorney’s fees
pursuant to 42 U.S.C. § 1988(b).
BACKGROUND
Plaintiffs, residents of Tacoma, Washington, brought a civil
rights lawsuit pursuant to, inter alia, 42 U.S.C. § 1983 alleg-
ing multiple causes of action against the Tacoma Police
Department (“TPD”), the City of Tacoma, three City officials,
and twenty-two individually named police officers. Based on
several incidents in which Plaintiffs were allegedly abused
and harassed by police officers from the TPD, Plaintiffs
brought numerous causes of action which ranged from viola-
tion of federal civil rights statutes to abuse of process.
During the course of litigation, several dispositive motions
were filed by Defendants, many of which were granted.1 As
a result, by the time of trial, three of the original four Plain-
1In ruling on these motions, the district court’s job was facilitated in
part because Plaintiffs did not oppose some of the motions and stipulated
to the dismissal of actions against various officers.
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tiffs maintained claims against the City and eight police offi-
cers stemming from ten incidents. The district court
trifurcated the trial, grouping related causes of action into sep-
arate proceedings: (1) Plaintiffs’ claims against the individual
officers, (2) Plaintiffs’ claims against the City for its hiring
and retention of Officer Baker, and (3) Defendants’ counter-
claim against Plaintiffs for malicious prosecution.
The trial lasted five weeks and jury deliberations continued
for three days. The jury ultimately returned a verdict for
Plaintiff Thomas on his claim against Officer Tennyson for
violation of his constitutional right to be free from unlawful
seizures. Defendants prevailed on all remaining claims,
including the counterclaim. In its award to Plaintiff Thomas,
the jury allocated $15,000 in compensatory damages and
$20,000 in punitive damages.2 Plaintiff Thomas3 and Defen-
dants, in their respective status as prevailing parties and pur-
suant to 42 U.S.C. § 1988, agreed to have the district court
decide the issue of attorney’s fees. After submission of the
briefs and oral argument, the district court denied both par-
ties’ requests for fees.
DISCUSSION
I. Legal Standard
We have jurisdiction over the district court’s denial of
attorney’s fees pursuant to 28 U.S.C. § 1291. Awards of attor-
ney’s fees are generally reviewed for an abuse of discretion.
Watson v. County of Riverside, 300 F.3d 1092, 1095 (9th Cir.
2Although this is the verdict returned by the jury, the parties subse-
quently reached a settlement in which the verdict for Plaintiffs was
vacated and Defendants’ malicious prosecution claim was dismissed.
3Although Plaintiff’s briefing often refers to the collective “Plaintiffs”
in arguing the district court’s decision to deny fees was wrong, it is clear
that Plaintiff Thomas was the sole prevailing party and therefore is the
only Plaintiff appealing the district court’s decision.
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2002). However, we only arrive at discretionary review if we
are satisfied that the correct legal standard was applied and
that none of the district court’s findings of fact were clearly
erroneous. Ferland v. Conrad Credit Corp., 244 F.3d 1145,
1147-48 (9th Cir. 2001). If the parties contend the district
court made a legal error in determining the fee award, then de
novo review is required. Hall v. Bolger, 768 F.2d 1148, 1150
(9th Cir. 1985) (“[A]ny elements of legal analysis and statu-
tory interpretation which figure in the district court’s decision
are reviewable de novo.”). All factual findings are reviewed
for clear error. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118
(9th Cir. 2000).
II. Analysis
[1] A prevailing party may be awarded reasonable fees in
relation to the prosecution of a federal civil rights claim.4 “In
any action or proceeding to enforce a provision of section[ ]
. . . 1983 . . . of this title, . . . the court, in its discretion, may
allow the prevailing party, other than the United States, a rea-
sonable attorney’s fee . . . .” 42 U.S.C. § 1988(b) (2000). The
statute does not differentiate between a prevailing plaintiff
and defendant, but case law has filled that gap. “[A] prevail-
ing plaintiff ‘should ordinarily recover an attorney’s fee
unless special circumstances would render such an award
unjust.’ ” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)
(quoting S. Rep. No. 94-1011, p. 4 (1976)). Prevailing defen-
dants, on the other hand, may only be awarded attorney’s fees
pursuant to 42 U.S.C. § 1988(b) when the plaintiff’s civil
rights claim is “frivolous, unreasonable, or groundless, or that
the plaintiff continued to litigate after it clearly became so.”
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422
(1978).
4We note that this fee dispute is based solely on Plaintiff’s § 1983
claims and is not related to Plaintiff’s other claims or Defendants’ counter-
claim.
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A. Plaintiff’s Request for Attorney’s Fees
In denying Plaintiff’s request for fees, the district court
concluded that granting an award of attorney’s fees to Plain-
tiff would be unjust because doing so would “result in a wind-
fall.” Thomas v. City of Tacoma, No. 01-5138 RBL, at *6-7
(W.D. Wash. Sept. 11, 2003). In support of this finding, the
district court reasoned that “any outside observer would easily
conclude that [Plaintiff] did not obtain what [he] sought in
this case” as he only prevailed on one of his many claims. Id.
at *6. As legal support, the district court relied on Farrar v.
Hobby, 506 U.S. 103 (1992), which recognized that there are
occasions when a prevailing party’s reasonable fee is no fee
at all. Farrar, 506 U.S. at 115.
Plaintiff contends that reliance on Farrar was error. We
agree. The district court used Farrar as a vehicle to arrive at
the ultimate denial of Plaintiff’s request for fees. After catego-
rizing Farrar as a “primary case” for analyzing a request for
a prevailing plaintiff’s attorney’s fees, the district court stated
that Farrar “cautions that any fee award must be evaluated by
comparing the extent of the plaintiffs’ success with the
amount of the award . . . [and] recognizes that even where a
plaintiff formally or technically prevails, sometimes the only
reasonable fee is no fee at all.” Thomas, No. 01-5138 RBL,
at *6 (internal citation and internal quotation omitted). In so
characterizing Farrar, the district court missed its central
holding and improperly applied it to this case. The district
court characterized Farrar as a case authorizing an award of
no attorney’s fees, notwithstanding the fact that plaintiff pre-
vailed, because the plaintiff did not prevail enough. Farrar’s
holding is much more limited. In Farrar, the United States
Supreme Court decided the propriety of a fee award when the
plaintiff was awarded only nominal damages. It held that,
although a plaintiff is technically “prevailing” when awarded
nominal damages, a formal or technical victory may, in some
circumstances, only support an award of no fees. 506 U.S. at
115. By contrast to the plaintiff in Farrar who was awarded
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only nominal damages, Plaintiff here recovered a total of
$35,000: $15,000 in compensatory damages and $20,000 in
punitive damages. The jury’s award of punitive damages
alone is sufficient to take it out of the nominal category.
Therefore, the district court’s reliance on Farrar was
improper.
The proper analysis requires that a prevailing plaintiff only
be denied an award of attorney’s fees when special circum-
stances exist sufficient to render an award unjust. Hensley,
461 U.S. at 429. In applying the “special circumstances”
exception, we focus on two factors: “(1) whether allowing
attorney fees would further the purposes of § 1988 and (2)
whether the balance of the equities favors or disfavors the
denial of fees.” Gilbrook v. City of Westminster, 177 F.3d
839, 878 (9th Cir. 1999).
The two justifications articulated by the district court for
denying the request for fees were: (1) it would result in a
windfall to Plaintiff, and (2) Plaintiff did not obtain the relief
requested. Granting a windfall to plaintiffs was a concern ech-
oed by Congress in enacting § 1988, but Congress balanced
that concern against the need to attract competent counsel to
prosecute civil rights cases. City of Riverside v. Rivera, 477
U.S. 561, 579-80 (1986) (plurality opinion). Thus, § 1988 is
a product of balancing those concerns by only permitting rea-
sonable fees. See 42 U.S.C. § 1988(b). To require Defendants
to pay reasonable attorney’s fees relevant to the prosecution
of the successful claim does not create a windfall, but fulfills
the Congressional purpose of § 1988(b).
[2] The fact that Plaintiff failed to recover on all theories
of liability is not a bar to recovery of attorney’s fees. This
concern was addressed by the Supreme Court in Hensley. In
Hensley, the Supreme Court recognized that “the most critical
factor [in determining the amount of attorney’s fees to award]
is the degree of success obtained.” 461 U.S. at 436. The
Supreme Court explained:
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Where the plaintiff has failed to prevail on a claim
that is distinct in all respects from his successful
claims, the hours spent on the unsuccessful claim
should be excluded in considering the amount of a
reasonable fee. Where a lawsuit consists of related
claims, a plaintiff who has won substantial relief
should not have his attorney’s fee reduced simply
because the district court did not adopt each conten-
tion raised. But where the plaintiff achieved only
limited success, the district court should award only
that amount that is reasonable in relation to the
results obtained.
Id. at 440. To deny an award of attorney’s fees notwithstand-
ing Plaintiff’s clear victory on one of his claims for relief is
an abuse of discretion; a reasonable fee in this case is not no
fee at all.
[3] On remand, the district court must determine the rea-
sonable fee for Plaintiff in this case. Because Plaintiff
“achieved only partial or limited success, the product of hours
reasonably expended on the litigation as a whole times a rea-
sonable hourly rate may be an excessive amount.” Id. at 436
(emphasis added). Therefore, the district court’s inquiry is
more searching, though it “should not result in a second major
litigation.” Id. at 437. In such cases, we have employed a two-
part test: (1) whether Plaintiff prevailed on unrelated claims
(“[h]ours expended on unrelated, unsuccessful claims should
not be included in an award of fees”), and (2) whether “the
plaintiff achieve[d] a level of success that makes the hours
reasonably expended a satisfactory basis for making a fee
award.” Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003)
(internal quotation omitted).
To determine whether the claims are related, the district
court should focus on whether the claims on which Plaintiff
did not prevail “involve a common core of facts or are based
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on related legal theories.” Id. (emphasis in original).5 To the
extent the claims are related, Plaintiff should recover reason-
able fees for prosecuting those claims. However, a determina-
tion that certain claims are not related does not automatically
bar an award of attorney’s fees associated with those unre-
lated claims; work performed in pursuit of the unrelated
claims may be inseparable from that performed in furtherance
of the related or successful claims. We recognize the diffi-
culty in parsing through Plaintiff’s claims to determine relat-
edness and in no way imply which of the myriad claims
brought by Plaintiff are related to his successful claim. That
is for the district court to decide.
The bulk of discretion retained by the district court lies in
the second, significance of relief, inquiry. Id. at 1169 (“If it
is impossible to isolate the truly unrelated claims from those
related claims, the district court should instead reflect that
limited success in [the] second step.”) (citation omitted). At
the heart of this inquiry is whether Plaintiff’s “accomplish-
ments in this case justify the fee amount requested.” Thorne
v. City of El Segundo, 802 F.2d 1131, 1142 (9th Cir. 1986)
(citation omitted). “There is no precise rule or formula for
making these determinations.” Id. at 436. Plaintiff succeeded
on only one of his many claims against Defendants, which
was sufficient to persuade the jury to award punitive damages.
It is now within the district court’s discretion to determine
whether that award supports Plaintiff’s fee request.
B. Defendants’ Request for Attorney’s Fees
In denying Defendants’ fee application, the district court
stated:
The Court is convinced that while some of the plain-
5By way of comparison, unrelated claims are those that are “entirely
distinct and separate from the claims on which the plaintiff prevailed.”
Webb, 330 F.3d at 1168 (internal quotation omitted).
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tiffs’ claims were stronger than others, the claims do
not rise to the “frivolous, unreasonable, or without
foundation” level required to entitle the defendants
to their fees. The defendants do not cite a truly anal-
ogous Civil Rights case in support of their motion,
and the Court has not found one. The cases relied
upon involve more egregiously meritless claims,
and, more importantly, less compelling fundamental
Civil Rights issues.
Thomas, No. 01-5138 RBL, at *5. Defendants contest this
result on two fronts. First, Defendants claim that the district
court erred by applying the wrong legal standard by premising
its denial of Defendants’ request on Plaintiffs’ subjective
good faith. Second, and in the apparent alternative, Defen-
dants contend that the district court abused its discretion in
denying the request because many of Plaintiffs’ claims had no
factual basis or were not legally cognizable.
In support of their first argument, Defendants cite to a case
from the Second Circuit. In Davidson v. Keenan, the Second
Circuit held that the district court erred in denying the defen-
dants’ motion for attorney’s fees because it employed an
improper legal standard. 740 F.2d 129, 133 (2d Cir. 1984).
The district court’s sole basis for the denial of fees in David-
son was because plaintiffs relied in good faith on their coun-
sel’s advice in deciding to proceed with their suit. Id.
Defendant’s reliance on Davidson is misplaced. The district
court did not base its denial of Defendants’ fee application on
Plaintiff’s good faith. The district court’s operative finding on
this issue, as stated in open court, was that after sitting
through “six weeks of trial, [the court did not] believe that the
claims that Plaintiff brought were frivolous.” ER 377 (empha-
sis added). The district court reiterated this finding in its writ-
ten order. Thomas, No. 01-5138 RBL, at *5. Therefore, the
holding of Davidson is not applicable to this case.
[4] Defendants’ second argument, that the district court
abused its discretion in not granting fees because many of
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Plaintiff’s claims were without merit, is not well taken.
Defendants assert that dozens of the claims asserted by Plain-
tiffs had no reasonable basis in fact or law. Thus, Defendants
argue that the claims were frivolous, entitling them to an
award of attorney’s fees. Aple’s Br. at 21 (citing Tarkowski
v. Lake County, 775 F.2d 173 (7th Cir. 1985)). This position
misapprehends the district court’s findings and the current
state of the law. The district court made clear findings regard-
ing the merits of Plaintiffs’ claims, stating that they were not
“ ‘frivolous, unreasonable, or without foundation.’ ” Thomas,
No. 01-5138 RBL, at *5. We cannot say that the district court
abused its discretion in finding the claims not to be frivolous.
However, assuming arguendo that the claims were frivolous,
the district court’s ultimate decision to deny Defendants’ fees
was nonetheless not an abuse of discretion.
[5] We are persuaded by the First Circuit’s reasoning artic-
ulated in Tang v. Rhode Island, Dep’t of Elderly Affairs, 163
F.3d 7 (1st Cir. 1998), on which the district court relied. In
Tang, the court recognized that, although a finding of frivolity
was a prerequisite to an award of attorney’s fees,
“[n]otwithstanding such a finding, the district court still
retains discretion to deny or reduce fee requests after consid-
ering all the nuances of a particular case.” Tang, 163 F.3d at
15.
[6] The district court exercised the continuing discretion
articulated in Tang:
[T]he Court does not find in the exercise of its dis-
cretion that, even if some of their claims could be
[characterized as frivolous, unreasonable, or without
foundation], the plaintiffs should be forced to pay
the defendants’ attorneys’s fees. The lofty goals of
the Civil Rights Act and the fee shifting mechanism
contained in it would be undermined, not advanced,
by an award of fees against the plaintiffs in this case.
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Thomas, No. 01-5138 RBL, at *6. In so doing, the district
court did not abuse its discretion.
CONCLUSION
Based on the foregoing, we reverse in part and affirm in
part the district court’s opinion. Specifically, we REVERSE
the district court’s denial of attorney’s fees to Plaintiff
Thomas, AFFIRM the district court’s denial of attorney’s fees
to Defendants, and REMAND the case for proceedings con-
sistent with this opinion. The parties shall bear their own costs
on appeal.
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