United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Pierce, a Native American woman, sued the City of
Philadelphia for discrimination, harassment and retaliation.
She claimed the City failed to promote her to three positions
in 2015, 2016 and 2017 because of her race in violation of 42
U.S.C. § 1981, the Equal Protection Clause of the
Fourteenth Amendment, Title VII of the Civil Rights Act of
1964, the Pennsylvania Human Relations Act and the
Philadelphia Fair Practices Ordinance. She also claimed the
City subjected her to a hostile work environment and
retaliated against her. After discovery, Pierce withdrew her
discrimination claims related to the 2015 promotion. Both
parties then moved for summary judgment. The Court granted
judgment for the City on the discrimination claims related to
the 2017 promotion, hostile work environment claims and
retaliation claim under § 1981. The Court denied
Pierce's motion for summary judgment.
case proceeded to trial on the discrimination claims related
to the 2016 promotion under § 1981, the Equal Protection
Clause, Title VII, the PHRA and the PFPO and the retaliation
claims under Title VII, the PHRA and the PFPO. The jury found
in the City's favor on the discrimination claims, though
it concluded that the City retaliated against Pierce. The
jurors awarded one dollar in nominal damages.
trial, Pierce filed a motion for equitable and injunctive
relief, a motion for judgment as a matter of law and for a
new trial and a second motion for a new trial. The Court
denied the motions. Pierce now seeks $358, 383 in
attorney's fees and $29, 436.56 in costs as the prevailing
party on her retaliation claim. The Motion is denied with
prejudice as to attorneys' fees and denied without
prejudice as to costs for the reasons that follow.
Court, “in its discretion, may allow the prevailing
party” in a Title VII case “a reasonable
attorney's fee . . . as part of the costs”
awarded. 42 U.S.C. § 2000e-5(k). The City does
not dispute that Pierce is a “prevailing party”
within the meaning of the Title VII because she received
nominal damages on her retaliation claim. (Def.'s Mem.
Opp'n Mot. 3-4); see Farrar v. Hobby, 506 U.S.
103, 112 (1992). Thus, the Court need only determine what fee
award, if any, is reasonable under the circumstances of this
Farrar, the United States Supreme Court held that
“[a]lthough the ‘technical' nature of a
nominal damages award . . . does not affect the prevailing
party inquiry” for the purposes of awarding
attorneys' fees, “it does bear on the propriety of
fees awarded . . . .” Farrar, 506 U.S. at 114.
The most critical factor in determining a
“reasonable” fee is “the degree of success
obtained” by the prevailing party. Id.
(quoting Hensley v. Eckerhart, 461 U.S. 424, 436
(1983)). The Court concluded that “[w]hen a plaintiff
recovers only nominal damages because of his failure to prove
an essential element of his claim for monetary relief, the
only reasonable fee is usually no fee at all.”
Id. (citing Carey v. Piphus, 435 U.S. 247,
256-57, 264 (1978)).
O'Connor concurred in Farrar, reiterating that
the “de minimis or technical” nature of
a nominal damages award “is part of the determination
of what constitutes a reasonable fee.” Id. at
117 (O'Connor, J., concurring). She stated that
“the practice of denying fees to Pyrrhic victors is one
[Congress] clearly intended to preserve” in
fee-shifting statutes, but cautioned that “[n]ominal
relief does not necessarily a nominal victory make.”
Id. at 119, 121. She proposed three factors to
consider in determining whether to award fees in a nominal
damages case: (1) the difference between the amount recovered
and the damages sought, (2) the significance of the legal
issue on which the plaintiff claims to have prevailed and (3)
whether the plaintiff's success accomplished some public
goal other than occupying the time and energy of counsel,
court and client. Id. at 121-22.
Third Circuit Court of Appeals applied Farrar in
Jama v. Esmor Correctional Services, 577 F.3d 169
(3d Cir. 2009). In that case, a jury awarded nominal damages
to Jama on her Religious Freedom Restoration Act claim and
$100, 000 in tort damages. Jama, 577 F.3d at 171.
The district court granted Jama's attorneys' fee
petition, attributing a portion of the tort award to her
fee-eligible RFRA claim. Id. at 173. The Third
Circuit remanded for reconsideration of the relationship
between the tort and RFRA claims. Id. at 179-80. The
court also directed the district court to “consider the
extent to which Jama's RFRA claim might, even
independently, justify a fee award under the factors
articulated by Justice O'Connor in
Farrar.” Id. at Three years later, a
Third Circuit panel acknowledged in a non-precedential
opinion that “Jama may have muddied the waters
after Farrar.” Velius v. Twp. of
Hamilton, 466 Fed.Appx. 133, 140 (3d Cir. 2012). In
Velius, a jury found that police officers violated
the plaintiff's right to be free from excessive force,
but awarded only nominal damages. The district court, which
“seemed to believe it was obligated to apply the
factors cited in Justice O'Connor's concurrence in
Farrar, ” awarded $2, 259 in attorneys'
fees. Id. at 134-35, 139. The Third Circuit vacated
the award and remanded with the following instructions to the
Our “adoption” of Justice O'Connor's
factors [in Jama] must be understood only as an
endorsement of the use of those considerations by trial
judges who believe the case before them may present the rare
situation in which success on the claim justifies
attorneys' fees despite the technical victory manifested
by an award of nominal damages. . . .
On remand, the District Court should consider the fact that
an “obtuse” verdict “cannot deter
misconduct any more than a bolt of lightning can; . . . it
teaches no valuable lesson because it carries no discernable
meaning.” The verdict sheet in this case does not
demonstrate whether the jury's verdict was based on the
Officers pulling [plaintiff] from his truck, handcuffing him
too tightly, or both. Thus, it cannot serve any substantial
notice-giving function vis-à-vis the impropriety of
tight handcuffing. We further caution that, given the
Farrar rule that nominal damages awards in civil
rights cases usually will warrant no fee and that every civil
rights case in which the plaintiff prevails on the merits
vindicates some right, it cannot be the case that the mere
vindication of rights alone suffices to distinguish those
cases in which the presumption of no fee is overcome.
Id. at 140, 141 n.4 (quoting Farrar, 506
U.S. at 122 (O'Connor, J., concurring)).
recently, in another non-precedential opinion, the Third
Circuit held that a district court “applied the correct
standard” to an attorneys' fee request in a nominal
damages case and affirmed the district court's order
denying fees. Carroll v. Clifford Twp., 625
Fed.Appx. 43, 46 (3d Cir. 2015). The district court had first
noted that one dollar was “a minute fraction of”
the damages the plaintiff sought in the case and
“g[ave] primacy” to that disparity. Carroll v.
Clifford Twp., 2014 WL 2860994 at *3 (M.D. Pa. June 23,
2014). The district court then acknowledged that “it
need not consider the additional O'Connor factors,
” but nonetheless did so “briefly” and
found that the remaining two factors weighed against awarding
fees. Id. at *3-4.
Jama, Velius and Carroll, district
courts have heeded Farrar's instruction to
determine what fee is reasonable under the circumstances of a
case, giving “primary consideration to the amount of
damages awarded as compared to the amount sought.”
Farrar, 506 U.S. at 114-15 (citations omitted).
See, e.g., Watley v. Felsman, 2019 WL
2994235 (M.D. Pa. July 9, 2019); Yarnall v. Phila. Sch.
Dist., 203 F.Supp.3d 558 (E.D. Pa. 2016). See also
Jordan ex rel. Arenas-Jordan v. Russo, 2014 WL 869482
(W.D. Pa. Mar. 5, 2014). The Court has “substantial
discretion” under Farrar “to decide
whether no fee or some fee would be reasonable, as long as
[it] acknowledge[s] that a nominal damages award is
presumptively a technical victory that does not merit an
award of ...