FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CORY L. THOMAS; ABDULLAH ALI; 

and MUHAMMAD ALEXANDER,

Plaintiffs-AppellantsCross-Appellees,

v.

CITY OF TACOMA, a municipal

corporation; TACOMA POLICE Nos. 03-35799

DEPARTMENT; BRIAN EBERSOLE; 03-35816

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-AppelleesCross-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. 

6587
Opinion by Judge McKay

6588 THOMAS v. CITY OF TACOMA
COUNSEL

Lembhard G. Howell, Law Offices of Lembhard G. Howell,

P.S., Seattle, Washington, for the plaintiffs-appellants-crossappellees. 

Jean P. Homan, Assistant City Attorney, Tacoma City Attorney’s Office, Tacoma, Washington, for the defendantsappellees-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 alleging 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 violation 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 Plain1

In 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. 

6590 THOMAS v. CITY OF TACOMA
tiffs maintained claims against the City and eight police officers stemming from ten incidents. The district court

trifurcated the trial, grouping related causes of action into separate 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’ counterclaim 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 Defendants, in their respective status as prevailing parties and pursuant 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 parties’ 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 attorney’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 subsequently 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. 

THOMAS v. CITY OF TACOMA 6591
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 statutory 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 reasonable 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] prevailing 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 defendants, 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’ counterclaim. 

6592 THOMAS v. CITY OF TACOMA
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 Plaintiff would be unjust because doing so would “result in a windfall.” 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 categorizing 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 prevailed, 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

THOMAS v. CITY OF TACOMA 6593
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 circumstances 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 echoed 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 reasonable 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:

6594 THOMAS v. CITY OF TACOMA
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 contention 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 notwithstanding 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 reasonable 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 reasonable 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 twopart 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

THOMAS v. CITY OF TACOMA 6595
on related legal theories.” Id. (emphasis in original).5

 To the

extent the claims are related, Plaintiff should recover reasonable fees for prosecuting those claims. However, a determination that certain claims are not related does not automatically

bar an award of attorney’s fees associated with those unrelated 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 difficulty in parsing through Plaintiff’s claims to determine relatedness 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 “accomplishments 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 plain5By 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). 

6596 THOMAS v. CITY OF TACOMA
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 analogous 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, Defendants 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 defendants’ 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 Davidson was because plaintiffs relied in good faith on their counsel’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 (emphasis added). The district court reiterated this finding in its written 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

THOMAS v. CITY OF TACOMA 6597
Plaintiff’s claims were without merit, is not well taken.

Defendants assert that dozens of the claims asserted by Plaintiffs 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 regarding 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 articulated 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 considering 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 discretion 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.

6598 THOMAS v. CITY OF TACOMA
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 consistent with this opinion. The parties shall bear their own costs

on appeal. 

THOMAS v. CITY OF TACOMA 6599