Cummings v. Connell ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTINE A. CUMMINGS; JANET 
TAYLOR DARVAS; RICHARD K.
DEHART; CHRISTOPHER GARBANI;
PATRICIA A. MCCUMSEY; DANIEL
NOWALIS; CLAUDIA STEWART,
Plaintiffs-Appellants,
and
MONA YASSA,
Plaintiff, No. 03-17095
v.  D.C. No.
KATHLEEN CONNELL, Controller, CV-99-02176-WBS
State of California; MARTY
MORGENSTERN, Director California
Department of Personnel
Administration; CALIFORNIA STATE
EMPLOYEES ASSOCIATION, LOCAL
1000; LOCAL 1000 SERVICE
EMPLOYEES INTERNATIONAL UNION,
AFL-CIO-CLC,
Defendants-Appellees.

5255
5256 CUMMINGS v. CONNELL
CHRISTINE A. CUMMINGS; JANET 
TAYLOR DARVAS; RICHARD K.
DEHART; CHRISTOPHER GARBANI;
PATRICIA A. MCCUMSEY; DANIEL
NOWALIS; CLAUDIA STEWART; MONA
YASSA,
Plaintiffs-Appellees,
v.
KATHLEEN CONNELL, Controller,
State of California; MARTY No. 04-15154
MORGENSTERN, Director California  D.C. No.
Department of Personnel CV-99-02176-WBS
Administration,
Defendants,
and
CALIFORNIA STATE EMPLOYEES
ASSOCIATION, LOCAL 1000; LOCAL
1000 SERVICE EMPLOYEES
INTERNATIONAL UNION, AFL-CIO-
CLC,
Defendants-Appellants.

CUMMINGS v. CONNELL 5257
CHRISTINE A. CUMMINGS; JANET 
TAYLOR DARVAS; RICHARD K.
DEHART; CHRISTOPHER GARBANI;
PATRICIA A. MCCUMSEY; DANIEL
NOWALIS; CLAUDIA STEWART,
Plaintiffs-Appellants,
and
MONA YASSA, No. 04-15186
Plaintiff, D.C. No.
v.  CV-99-02176-WBS
KATHLEEN CONNELL, Controller, ORDER AND
State of California; MARTY AMENDED
MORGENSTERN, Director California OPINION
Department of Personnel
Administration; CALIFORNIA STATE
EMPLOYEES ASSOCIATION, LOCAL
1000; LOCAL 1000 SERVICE
EMPLOYEES INTERNATIONAL UNION,
AFL-CIO-CLC,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Chief Judge, Presiding
Argued and Submitted
February 14, 2005—San Francisco, California
Filed March 29, 2005
Amended May 17, 2005
5258 CUMMINGS v. CONNELL
Before: Arthur L. Alarcón, Eugene E. Siler, Jr.,* and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Silverman
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
CUMMINGS v. CONNELL 5261
COUNSEL
Jeffrey B. Demain and Eileen B. Goldsmith, Altshuler, Ber-
zon, Nussbaum, Rubin & Demain, San Francisco, California,
for the defendant-appellee/appellant/cross-appellee.
W. James Young, National Right to Work Legal Defense
Foundation, Inc., Springfield, Virginia, for the plaintiffs-
appellants/appellees/cross-appellants.
ORDER
The Opinion filed on March 29, 2005, slip op. 3761, is
amended as follows:
At slip op. 3781, in the last paragraph, change “The parties
shall bear their own fees, expenses and costs incurred in this
appeal.” to “The parties shall bear their own costs incurred in
this appeal.”
The Petition For Rehearing and/or Suggestion for Rehear-
ing En Banc filed by Plaintiffs-Appellants/Appellees/Cross-
Appellants Christine Cummings et al. remains pending. The
Court will not entertain further Petitions for Rehearing.
OPINION
SILVERMAN, Circuit Judge:
We hold today that when nominal damages are awarded in
a civil rights class action, every member of the class whose
5262 CUMMINGS v. CONNELL
constitutional rights were violated is entitled to nominal dam-
ages. An award of nominal damages to only the named class
representatives fails to appreciate the difference between a
class action and a conventional lawsuit.
We also hold that, pursuant to Ninth Circuit Rule 39-1.6,
a request for attorney’s fees incurred on appeal must be made
to us, not to the district court. The district court is not autho-
rized to award attorney’s fees for an appeal unless we transfer
the fee request to the district court for consideration.
I. Facts
This is the second time this case has been on appeal. A
detailed description of the facts underlying this case is set out
in Cummings v. Connell, 316 F.3d 886 (9th Cir. 2003)
(“Cummings I”). We briefly summarize them here. Defendant
California State Employees Association, Local 1000, Service
Employees International Union, AFL-CIO-CLC is the exclu-
sive representative for nine bargaining units of California
state employees. The seven named plaintiffs are nonunion
employees of the State of California. Although the plaintiffs
have no affiliation with the Union, the state deducts agency
“fair share” fees from their paychecks to cover their share of
the collective bargaining process between the state and the
Union.1 Plaintiffs brought a class action pursuant to 42 U.S.C.
§ 1983 on behalf of 37,000 nonunion members alleging that
the Union was improperly withholding the agency fees with-
out providing the procedural safeguards mandated by the
1
Because all employees benefit from a union’s representation during the
collective bargaining process, the Supreme Court has held that nonunion
members constitutionally may be compelled to contribute their pro rata
share of the costs incurred in obtaining the benefits of representation. See
Abood v. Detroit Bd. of Educ., 431 U.S. 209, 221-23 (1977); see also
Wagner v. Prof’l Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1038 (9th Cir.
2004) (“A union that represents employees in a collective-bargaining unit
has a legal obligation to represent equally all employees in the bargaining
unit, whether or not they are members of the union.”).
CUMMINGS v. CONNELL 5263
Supreme Court in Chicago Teachers Union v. Hudson, 475
U.S. 292 (1986).2 The district court certified the class3 and
ultimately determined that the notices were indeed deficient
under Hudson. The court ordered the Union to refund the non-
chargeable portion of the fee to all fee payers, including those
who did not object to any of the notices. This restitution
award came to approximately $3 million dollars. The court
also awarded plaintiffs’ attorneys’ fees and costs of nearly
$100,000.
In Cummings I, we affirmed the district court’s certification
of the class. We also affirmed the court’s ruling that the
Union’s first Hudson notice was defective for failing to
include verifications of the withholding calculations. How-
ever, we reversed as over-broad the award of restitution of the
nonchargeable portion of the fee to all class members, includ-
ing to those who did not object to any of the notices. We said:
We agree with the Union, however, that the district
court went too far in ordering partial restitution to all
class members. Ordinarily, if there is a proper Hud-
son notice, the employee has the burden to object to
paying the full nonmember fee, and only then is enti-
2
Both federal and California law entitle nonunion members to a refund,
upon request, of that portion of the fair share fee that is not related to the
union’s representational activities. See Hudson, 475 U.S. at 301-02 (hold-
ing that nonunion members “have a constitutional right to prevent the
Union’s spending a part of their required service fees to contribute to
political candidates and to express political views unrelated to its duties
as exclusive bargaining representative.”); see also Cal. Gov’t Code
§ 3515.8. To facilitate this option, the union must provide fee payers with
“an adequate explanation of the basis for the fee.” Hudson, 475 U.S. 310.
3
The court certified the class as constituting “All former, current, and
future State of California employees employed in Bargaining Units 1, 3,
4, 11, 14, 15, 17, 20, and 21 who are, have been, or will be represented
exclusively for purposes of collective bargaining by CSEA, but who are
not, were not, or will not be members of CSEA, and were (after 2 March
1999), are, and/or will be nevertheless required to pay agency fees to
CSEA as a condition of continued State employment.”
5264 CUMMINGS v. CONNELL
tled to a refund of the nonchargeable portion of the
fee.
***
In this case, the nonmembers all eventually received
notices with sufficient information under Hudson,
and a renewed opportunity to object and receive their
money back with interest. We fail to see how plain-
tiffs suffered any compensable harm (aside from
nominal damages) from the initial defective notice.
***
On remand, the district court should reconsider the
issue of attorneys’ fees and costs to determine
whether further reduction is appropriate in light of
our decision regarding the proper remedy for the
Hudson violation.
316 F.3d at 894, 895, 898 (citations omitted).
On remand, the district court made two rulings that are now
before us on appeal. The first one concerned the award of
nominal damages. The court ruled that in light of our opinion
in Cummings I “the issue of whether plaintiffs suffered an
injury entitling them to nominal damages is not a matter of
dispute.” 281 F. Supp. 2d at 1191. What remained to be
resolved was which plaintiffs should receive those damages
— each of the 37,000 class members or just the seven class
representatives? — and also the amount of nominal damages
to be awarded — $1.00 per person or $17.00 per person? In
the end, the district court ruled that only the seven named
class representatives were each entitled to the one dollar nom-
inal damages award, not each class member. The court addi-
tionally declined to grant a separate nominal damage award
for each of the seventeen alleged acts of the same constitu-
tional violation. The total damage award against the Union
CUMMINGS v. CONNELL 5265
was $7.00. Plaintiffs appeal both the failure to award nominal
damages to each class member, and the amount awarded per
person.
The second one concerned attorney’s fees. Following the
entry of the amended judgment, plaintiffs renewed their
request for attorneys’ fees and costs, seeking roughly
$194,237. After taking into consideration plaintiffs’ limited
success on appeal and deducting all fees associated with the
unsuccessful chargeability cause of action, the court awarded
a total of $94,369.42. This figure represented approximately
$65,052 for attorneys’ fees and costs incurred in the district
court for the pre- and post-appeal phases of the case. Of par-
ticular significance, it also included approximately $29,318
for fees and expenses incurred on appeal. The parties cross-
appeal the fees and costs order.
II. Discussion
A. Nominal Damages Award
(1) Award of Nominal Damages to Class
Representatives vs. All Class Members
The district court declined to award each class member
$1.00 because the total award against the Union would be
$37,000, which the court found to be substantial.4 As already
mentioned, the court awarded a total of $7.00, $1.00 to each
of the class representatives. Plaintiffs contend that each mem-
ber of the plaintiff class had been subjected to a constitutional
violation, and thus each member should receive nominal dam-
4
The court additionally “considered and rejected the idea of awarding
nominal damages of something less than $1.00 to each class member. E.g.
an award of 1 cent per class member would result in a total award of only
$370. However, it would cost defendants as much to cut 37,000 checks for
$.01 each as it would to cut 37,000 checks for $1.00 each, and the court
believes that an award of one penny would more trivialize plaintiffs’ con-
stitutional rights than vindicate them.”
5266 CUMMINGS v. CONNELL
ages; to do otherwise, fails to vindicate the rights of the other
class members and disregards the purpose of class action liti-
gation. The Union counters that where, as here, the plaintiff
class is large, awarding even a $1.00 to each class member
offends the purpose underlying nominal damages.
[1] Under § 1983, damages for violations of constitutional
rights are determined according to principles derived from the
common law of torts. See, e.g., Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299, 305-06 (1986); Carey v. Piphus, 435
U.S. 247, 253 (1978). Damages are commonly understood to
compensate a party for loss or harm sustained. Nominal dam-
ages, however, serve a separate function. As distinguished
from punitive and compensatory damages, nominal damages
are awarded to vindicate rights, the infringement of which has
not caused actual, provable injury.
Common-law courts traditionally have vindicated
deprivations of certain “absolute” rights that are not
shown to have caused actual injury through the
award of a nominal sum of money. By making the
deprivation of such rights actionable for nominal
damages without proof of actual injury, the law rec-
ognizes the importance to organized society that
those rights be scrupulously observed; but at the
same time, it remains true to the principle that sub-
stantial damages should be awarded only to compen-
sate actual injury or, in the case of exemplary or
punitive damages, to deter or punish malicious depri-
vations of right.
Carey, 435 U.S. at 266. Nominal damages, as the term
implies, are in name only and customarily are defined as a
mere token or “trifling.” See, e.g., id. at 267; Magnett v. Pelle-
tier, 488 F.2d 33, 35 (1st Cir. 1973) (per curiam). Although
the amount of damages awarded is not limited to one dollar,
the nature of the award compels that the amount be minimal.
See Romano v. U-Haul Intern., 233 F.3d 655, 671 (1st Cir.
CUMMINGS v. CONNELL 5267
2000). Nominal damages serve one other function, to clarify
the identity of the prevailing party for the purposes of award-
ing attorney’s fees and costs in appropriate cases. Cf. Farrar
v. Hobby, 506 U.S. 103, 111-12 (1992) (stating that “a plain-
tiff who wins nominal damages is a prevailing party under
§ 1988”).
Cummings I established that only nominal damages should
have been awarded. However, on remand, the question
remained “nominal damages awarded to whom?” Each class
member? Or just the seven named class representatives?
In Harrington v. City of Albuquerque, 329 F. Supp. 2d
1237 (D. N.M. 2004), the district court awarded nominal
damages after finding that the union failed to provide consti-
tutionally sufficient Hudson notices. Id. at 1240. The plain-
tiffs sought “partial summary judgment awarding nominal
damages for each named plaintiff and each class member.” Id.
at 1241. The union conceded that the named plaintiffs were
entitled to nominal damages, but, “having opposed Plaintiffs’
motion for class certification, oppose[d] awarding damages to
each class member.” Id. The court rejected the union’s argu-
ment because it had already determined that the class was
properly certified. No other objection being discussed, the
court awarded the “entire class of Plaintiffs . . . nominal dam-
ages in the amount of one dollar per person.” Id. The class
comprised approximately 300 members, Harrington v. City of
Albuquerque, 222 F.R.D. 505, 509 (D. N.M. 2004).
In Hohe v. Casey, 956 F.2d 399, 415-16 (3d Cir. 1992), yet
another Hudson notice violation case, the Third Circuit
affirmed “the district court’s award of $1.00 nominal damage
to each nonmember,” because it had been established that
constitutionally inadequate procedures were used in imposing
the fair share fee. The plaintiff class was comprised of
roughly 18,000 members, id. at 402, making the total nominal
damage award approximately $18,000.
5268 CUMMINGS v. CONNELL
On the other hand, there are cases where the court granted
the damages award to “the class,” as opposed to each class
member, as if “the class” existed as a distinct entity like a cor-
poration or partnership. In Norwood v. Bain, 166 F.3d 243,
245 (4th Cir. 1999) (per curiam / en banc), the Fourth Circuit
sitting en banc remanded a § 1983 class action to the district
court with instructions to enter judgment “that includes an
award of nominal damages to the plaintiff class against
[defendants] not exceeding $1.00.” The court in Alexander v.
Polk, 572 F. Supp. 605, 623 (E.D. Pa. 1983), followed suit
awarding $1.00 in nominal damages to the entire plaintiff
class in a § 1983 case. The court additionally awarded $1.00
in nominal damages individually to a plaintiff who was not a
member of the class. Id. The Third Circuit affirmed the nomi-
nal damage award to the individual non-class member and
remanded the class award to the district court for consider-
ation of whether compensatory damages, in lieu of nominal
damages, were appropriate. Alexander v. Polk, 750 F.2d 250,
265 (3d Cir. 1984). See also Davenport v. DeRobertis, 653 F.
Supp. 649 (N.D. Ill. 1987) (approving jury’s award of $1.00
in nominal damages to each of the named plaintiffs in pris-
oner class action suit).
Finally, adding to the mix, is the apparently atypical posi-
tion taken by the court in Callahan v. Sanders, 339 F. Supp.
814 (M.D. Ala. 1971), denying any award of nominal dam-
ages because of the enormous size of the plaintiff class. Plain-
tiffs filed a § 1983 suit against the Alabama justices of the
peace alleging imposition of fines in violation of due process
and the Alabama highway laws. The court determined that the
defendants’ conduct resulted in constitutional deprivations,
but found that plaintiffs failed to sustain actual injury. The
court, after recognizing the availability of nominal damages,
refrained from awarding any damages because the class was
large. The Fifth Circuit affirmed. Callahan v. Wallace, 466
F.2d 59, 62 (5th Cir. 1972).
[2] We agree with the approach taken by the courts that
have recognized that each class member whose constitutional
CUMMINGS v. CONNELL 5269
rights were violated is entitled to nominal damages. Once a
class has been certified, there is no justification for awarding
nominal damages to only the named class representatives.
Class action litigation is a procedural mechanism designed to
join multiple parties with similar or identical claims, so that
they may seek redress in an efficient and expeditious manner.
Eyak Native Village v. Exxon Corp., 25 F.3d 773, 781 (9th
Cir. 1994).
One of the goals of class action litigation is to save the
resources of both the courts and the parties “by permitting an
issue potentially affecting every [class member] to be litigated
in an economical fashion under Rule 23.” Califano v. Yama-
saki, 442 U.S. 682, 701 (1979). This is accomplished in part
by allowing the class to proceed on a representative basis; a
class representative functions as a stand-in for the entire class
and assumes duties on behalf of the class. See Gen. Tel. Co.
of the Southwest v. Falcon, 457 U.S. 147, 155 (1982)
(acknowledging that class actions present the exception to the
rule that litigation is to be conducted by and on behalf of the
individually named parties). Nevertheless, while class repre-
sentatives stand in the stead of their fellow class members,
Rule 23 recognizes that the absent class members’ rights must
be scrupulously observed. Fed. R. Civ. P. 23 (requiring that
the class representative fairly and adequately represent the
interests of the absent class members).
[3] Where a plaintiff proves a violation of constitutional
rights, nominal damages must be awarded as a matter of law.
Schneider v. County of San Diego, 285 F.3d 784, 794 (9th Cir.
2002). Every member of the plaintiff class was entitled to the
Hudson procedural safeguards; every member of the class
received the same inadequate Hudson notice sent by the
Union; every member of the class suffered the same depriva-
tion of rights. And it follows that every member is entitled to
nominal damages, just as if each one had brought his or her
own lawsuit. It is axiomatic that Rule 23 cannot “abridge,
enlarge or modify any substantive right” of any party to the
5270 CUMMINGS v. CONNELL
litigation. 28 U.S.C. § 2072. Consequently, the mere fact that
a case is proceeding as a class action does not allow the dis-
trict court to vindicate the rights of the individually named
plaintiffs differently as compared to the absent class plaintiffs.
We are unpersuaded by the Union’s assertion that the class
representative’s function is to act as the symbol of the entire
class, and in such a capacity, is appropriately awarded the
symbolic $1.00 on behalf of the entire class. Awarding nomi-
nal damages to only the named class representatives results in
a divergence of interests between the class representatives and
the absent class members. This is in direct contravention of
Rule 23.
Finally, and perhaps most importantly, the Union’s asser-
tion that only the class representatives should receive the
damage award fails to appreciate the significance attached to
the fact that a class was certified. The purpose of a class
action is to obviate the need for all similarly situated persons
to file separate lawsuits when impractical to do so. This pur-
pose is defeated if only the named individuals recover nomi-
nal damages. It would also create the anomalous situation in
which class members would be bound by a judgment if they
lose, but can receive no individual vindication if they win.
[4] Balancing the goals of class action litigation to make
multi-party litigation expeditious and economic with the pur-
pose underlying nominal damages to vindicate injury not
resulting in actual harm, we conclude the district court erred
by awarding damages to only the class representatives to the
exclusion of the absent class members.
(2) Discrete Acts vs. General Nominal Damages
Award
Plaintiffs also take issue with the district court’s refusal to
award separate nominal damages of $1.00 for each of the sev-
enteen acts that resulted in a constitutional violation of the
CUMMINGS v. CONNELL 5271
nonmembers’ rights. Plaintiffs maintain that it was the invol-
untary taking of the nonmembers’ wages that resulted in a
violation of the employees’ constitutional rights, and accord-
ingly, each separate seizure must be remedied by a separate
award of nominal damages — in this case totaling not $1.00,
but $17.00 per person.
[5] In Redding v. Fairman, 717 F.2d 1105 (7th Cir. 1983),
prison inmates filed suit pursuant to § 1983 challenging the
constitutionality of procedures used by the Illinois Depart-
ment of Corrections to conduct disciplinary hearings. Follow-
ing the district court’s award of nominal damages, one of the
plaintiffs asserted that he should receive $1.00 for each of the
11 separate violations of his procedural due process rights. Id.
at 1119. The Seventh Circuit rejected that argument conclud-
ing that:
Nominal damages are not compensation for loss or
injury, but rather recognition of a violation of rights.
Nominal damages do not measure anything. The
plaintiff’s argument must be rejected; we will not
disturb the district court’s decision to award only $1
nominal damages.
Id. This reasoning is persuasive. An award of nominal dam-
ages is intended to serve as a symbol that defendant’s conduct
resulted in a technical, as opposed to injurious, violation of
plaintiff’s rights. Carey, 435 U.S. at 266-67. Nominal dam-
ages are not intended to compensate a plaintiff for injuries,
nor to act as a measure of the severity of a defendant’s wrong-
ful conduct. Recovery of nominal damages is important not
for the amount of the award, but for the fact of the award.
Indeed, nominal damages do not measure anything. As a con-
sequence of the present lawsuit, plaintiffs’ true relief is two-
fold: (1) “the moral satisfaction of knowing that a federal
court concluded that [their] rights had been violated,” Hewitt
v. Helms, 482 U.S. 755, 761-62 (1987); and (2) an enforce-
able judgment requiring the alteration of defendant’s behavior
5272 CUMMINGS v. CONNELL
to plaintiffs’ benefit. Accordingly, there is no justification for
calculating an award of nominal damages on the basis of the
number of times the defendant violated plaintiff’s rights.
Nominal damages exist as a purely “symbolic vindication
of [a] constitutional right.” Schneider, 285 F.3d at 794 (quot-
ing Floyd v. Laws, 929 F.2d 1390, 1401 (9th Cir. 1991)).
Applying plaintiffs’ approach converts the damage award into
something more akin to compensatory damages. As the court
in Redding acknowledged, multiple incidents in a continuing
constitutional violation are not separately compensable by
means of nominal damages. We adopt the reasoning of the
Seventh Circuit as articulated in Redding and affirm the dis-
trict court’s nominal damage award.
B. Attorneys’ Fees and Costs
[6] Pursuant to the Civil Rights Attorney’s Fees Awards
Act of 1976, 42 U.S.C. § 1988, a district court has the author-
ity to award reasonable attorney’s fees to the prevailing party
in a § 1983 case. City of Riverside v. Rivera, 477 U.S. 561,
567 (1986). A party need not prevail on all issues litigated,
but must succeed on at least some of the merits. Id. at 570.
The availability of attorney’s fees and costs pursuant to
§ 1988 was not contested before the district court; rather the
court was faced with deciding what amount constitutes “rea-
sonable attorney’s fees” in this case.
Following entry of the nominal damages award on remand,
plaintiffs filed a request for attorneys’ fees and cost for work
performed during: (1) the pre-appeal district court proceed-
ings, (2) the appeal before this Court in Cummings I, and (3)
all post-appeal proceedings. Plaintiffs requested a total
amount of $194,236.69. The Union objected, and suggested
that $6,753 was reasonable. The district court ultimately
granted plaintiffs a total award of $94,369.42, after taking into
consideration plaintiffs’ limited success on appeal, and
deducting all fees associated with the chargeability claim.
CUMMINGS v. CONNELL 5273
Both parties oppose the court’s award on a handful of
grounds.
(1) Attorneys’ Fees and Expenses Incurred Before the
District Court
[7] A plaintiff requesting attorney’s fees pursuant to § 1988
must demonstrate that it is the “prevailing party” to support
such a request. The Supreme Court has clarified that “a plain-
tiff who wins nominal damages is a prevailing party under
§ 1988.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992).
[8] While the symbolic nature of a nominal damages award
does not undercut a plaintiff’s prevailing party status, “it does
bear on the propriety of fees awarded under § 1988.” Id. at
114, 115. One of the most critical factors guiding a district
court’s ‘reasonableness of fees’ determination is “the degree
of success obtained.” Hensley, 461 U.S. at 436. This may be
particularly true where only nominal damages are assessed.
“That the plaintiff is a ‘prevailing party’ . . . may say little
about whether the expenditure of counsel’s time was reason-
able in relation to the success achieved.” Id.; see also Gates
v. Deukmejian, 987 F.2d 1392, 1403 (9th Cir. 1993) (recog-
nizing that in awarding attorney’s fees pursuant to § 1988 “[a]
determination that a party has prevailed . . . does not preclude
a determination that the prevailing party, nonetheless, has
achieved partial or limited rather than complete success”).
In Farrar, the Supreme Court addressed the reasonableness
of fees awarded pursuant to § 1988 in a case where plaintiffs
sought $17 million in compensatory damages and received
only one dollar in nominal damages. The Court held that
“[w]hen a plaintiff recovers only nominal damages because of
his failure to prove an essential element of his claim for mon-
etary relief, the only reasonable fee is usually no fee at all.”
Farrar, 506 U.S. at 115 (internal citation omitted). In such a
case, the guiding consideration for the district court is the dif-
ference between the damages sought and the amount recov-
5274 CUMMINGS v. CONNELL
ered. Id. “Having considered the amount and nature of
damages awarded, the court may lawfully award low fees or
no fees without reciting the 12 factors bearing on reasonable-
ness or multiplying the number of hours reasonably expended
. . . by a reasonable hourly rate.” Id. (internal citation and
quotation omitted). Justice O’Connor, in her concurrence,
identified two additional factors that merit consideration when
determining the degree of the plaintiff’s success: “the signifi-
cance of the legal issue on which the plaintiff claims to have
prevailed” and whether the plaintiff’s success “also accom-
plished some public goal other than occupying the time and
energy of counsel, court, and client.” Id. at 121-22 (O’Connor
concurring).
Where the district court properly has weighed the foregoing
factors, the resulting award is not an abuse of its discretion.
Cf. Norris v. Sysco Corp., 191 F.3d 1043, 1051-52 (9th Cir.
1999) (finding no abuse of discretion in fee award “[a]s long
as all facets of a case are considered”). We stress, however,
that it is vital that the court provide “some indication or expla-
nation of how [it] arrived at the amount of fees awarded.”
Chalmers v. City of Los Angeles, 796 F.2d 1205, 1213 (9th
Cir. 1986), amended, 808 F.2d 1373 (9th Cir. 1987); see also
Hensley, 461 U.S. at 437 (“It remains important . . . for the
district court to provide a concise but clear explanation of its
reasons for the fee award.”). Moreover, when confronted with
an objection on the basis of the limited nature of relief
obtained by the plaintiff, “the district court should make clear
that it has considered the relationship between the amount of
the fee awarded and the results obtained.” Hensley, 461 U.S.
at 437.
[9] The district court expressly premised its award of attor-
neys’ fees on plaintiffs’ recovery of only $7.00. In light of our
holding on the nominal damages issue, we remand for recal-
culation of the portions of the fee award that are related to
pre-trial and post-remand work performed before the district
court.
CUMMINGS v. CONNELL 5275
(2) Attorneys’ Fees and Expenses Incurred On Appeal
[10] The Union contends that the district court’s award of
attorneys’ fees and expenses for services rendered in the pre-
vious appeal, Cummings I, should be reversed because plain-
tiffs failed to file their request with the court of appeals as
required by Ninth Circuit Rule 39-1.6. We agree.
Ninth Circuit Rule 39-1.6 states that
a request for attorneys fees . . . shall be filed with the
Clerk . . . within 14 days from the expiration of the
period within which a petition for rehearing or sug-
gestion for rehearing en banc may be filed, unless a
timely petition for rehearing or suggestion for
rehearing en banc is filed.
Plaintiffs’ application for attorneys’ fees and expenses
incurred on appeal in Cummings I should have been filed with
the Clerk of the Ninth Circuit. Ninth Circuit Rule 39-1.85
authorizes us to transfer a timely-filed fees-on-appeal request
to the district court for consideration, but the decision to per-
mit the district court to handle the matter rests with the court
of appeals. In the absence of such a transfer, the district court
was not authorized to rule on the request for appellate attor-
ney’s fees. Cf. Martin v. Nickels & Dimes, Inc., 804 F. Supp.
83 (D. Hi. 1992).6 Accordingly, we reverse the award of attor-
neys’ fees incurred on appeal.
5
Ninth Circuit Rule 39-1.8 states:
Any party who is or may be eligible for attorneys fees on appeal
to this Court may, within the time permitted in Circuit Rule 39-
1.6, file a motion to transfer consideration of attorneys fees on
appeal to the district court or administrative agency from which
the appeal was taken.
6
We also note that plaintiffs’ request was filed way out of time — nine
months after time for filing a petition for rehearing or suggestion for
rehearing en banc had expired. See Ninth Cir. Rule 39-1.6.
5276 CUMMINGS v. CONNELL
III. Conclusion
We reverse the district court’s award of nominal damages
and remand for the court to issue a new nominal damages
award consistent with this opinion. In addition, we reverse the
district court’s award of attorneys’ fees and costs incurred
during the first appeal. Finally, we reverse the award of attor-
neys’ fees and costs incurred during the district court portion
of the proceedings, and remand for redetermination in light of
the new nominal damages award.
The parties shall bear their own costs incurred in this
appeal.
REVERSED and REMANDED.