2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-12-2009

Hawa Jama v. Diane McClure

Precedential or Non-Precedential: Precedential

Docket No. 08-2500

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________

No. 08-2500

_________

HAWA ABDI JAMA, n/k/a HALI HASHI EGAL;

JEYAKUMAR ANANTHARAJAH; ABU BAKAR;

CECILIA KOU JEFFREY; ABRAHAM KENNETH; 

SHAMIMU NANTEZA; DENNIS RAJI; 

AGATHA SERWAA; AND SARAH TETTEH YOWER 

v.

ESMOR CORRECTIONAL SERVICES, INC., 

n/k/a CORRECTIONAL SERVICES CORPORATION;

JAMES SLATTERY; AARON SPEISMAN; 

WILLARD STOVALL; JOHN LIMA; DIANE MCCLURE;

ESTATE OF RICHARD STALEY AND PHILIP JOHNSON

 Esmor Correctional Services, Inc.,

 and John Lima,

 Appellants

_________
 Honorable Thomas I. Vanaskie, Judge of the United States *

District Court for the Middle District of Pennsylvania, sitting by

designation. 

2

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 97-cv-03093)

District Judge: Honorable Dickinson R. Debevoise

__________

Argued May 20, 2009

Before: RENDELL and GARTH, Circuit Judges,

and VANASKIE, District Judge. *

(Filed: August 12, 2009)

 

James C. Owens, Esq

Virginia A. Seitz, Esq.

Frank R. Volpe, Esq.

Rebecca K. Wood, Esq. [ARGUED] 

Sidley Austin

1501 K Street, N.W.

Washington, DC 20005
3

Larry S. Reich, Esq.

Blank Rome LLP

405 Lexington Avenue

New York, NY 10174

Counsel for Appellants

 Esmor Correctional Services, Inc., 

 n/k/a Correctional Services Corporation;

 and John Lima

Drew Dorman, Esq.

Derek S. Tarson, Esq. 

Justin P. Smith, Esq. [ARGUED]

Mary Beth Hogan, Esq. 

Alison J. Page, Esq.

W. Barton Patterson, Esq.

Erica Davila, Esq.

Debevoise & Plimpton

919 Third Avenue, 41st Floor

New York, NY 10022

Frank Askin, Esq.

Rutgers University

Constitutional Law Clinic

15 Washington Street

Newark, NJ 07102
 Appellee has since changed her name to Holi Hashi Egal. 1

For consistency across the proceedings, we use her original

name here.

4

Penny Venetis, Esq. [ARGUED]

Rutgers University

Constitutional Litigation Clinic

123 Washington Street

Newark, NJ 07102

Counsel for Plaintiffs - Appellees

 Hawa Abdi Jama, n/k/a Hali Hashi Egal;

 Jeyakumar Anantharajah; Abu Bakar;

 Cecilia Kou Jeffrey; Abraham Kenneth; 

 Shamimu Nanteza; Dennis Raji; Agatha Serwaa; 

 Sarah Tetteh Yower 

__________

OPINION OF THE COURT

__________

RENDELL, Circuit Judge.

Appellee Hawa Abdi Jama was detained as an illegal 1

immigrant at a detention center run by Esmor Correctional
5

Services, Inc. (“Esmor”). Jama sued Esmor and certain of its

officers and employees, including facility administrator John

Lima, for violating her rights under the Religious Freedom

Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., and on

tort theories. The jury found in favor of Jama on the RFRA

claim, against Esmor and Lima, and in favor of Jama on one

state negligence claim, against Esmor, Lima, and two other

Defendants. The jury awarded $1 in RFRA damages and

$100,000 in tort damages. The District Court awarded Jama an

attorney’s fee against Esmor and Lima after concluding that a

portion of the tort award was “designed as compensation for”

RFRA injuries. Jama v. Esmor Corr. Servs. Inc., 549 F. Supp.

2d 602, 607 (D.N.J. 2008). Esmor and Lima appealed. 

Appellants argue that the District Court’s interpretation

of the jury award was erroneous, and assert that no fee may be

awarded because Jama’s success on the fee-eligible RFRA claim

was de minimis, and the pendent state claim cannot be

considered. Appellants alternatively challenge the

reasonableness of the amount awarded on several grounds. We

agree that the District Court erred in interpreting the jury award,

but do not agree that the Court is precluded from awarding fees

under these circumstances as a matter of law. We will remand

the matter for the District Court to reconsider the fee award

under the legal standards discussed below.
 The remaining Defendants subject to claims that reached the 2

jury were James Slattery, Richard Staley (deceased), and Diane

McClure. None of these individuals, nor the Estate of Richard

Staley, is a party to this appeal.

6

I. INTRODUCTION

Ms. Jama, a Somalian immigrant and Muslim, filed a

complaint in 1997, along with 19 other plaintiffs, to redress

allegedly abusive treatment and deplorable conditions at a

private detention center in Elizabeth, New Jersey (“the

Facility”). The Facility was operated by Esmor under contract

with the U.S. Immigration and Naturalization Service. Esmor

was named as a Defendant, as were certain officers and

employees of the company, including the facility administrator

John Lima. By the time of the 2007 verdict, Jama was the last

2

remaining plaintiff whose claims had not settled. At trial, she

presented evidence of general indignities suffered in the Facility,

as well as evidence specifically relating to restrictions on her

practice of religion. This latter category included evidence that

her attempts to pray were disrupted by guards, that she was

picked up from the floor while praying and thrown onto her bed,

that her Koran was thrown in the garbage, that she was

subjected to unnecessary strip searches, that she was exposed

naked in common view, that she was forced to eat pork, and that
 As we do not have the complete trial record before us, we 3

accept the District Court’s characterization of the evidence for

the limited purpose of providing background. See Jama, 549 F.

Supp. 2d at 607.

 RFRA provides that a government “shall not substantially 4

burden a person’s exercise of religion” unless the government

“demonstrates that application of the burden . . . is in

furtherance of a compelling governmental interest; and . . . is the

least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000bb-1. A person who

is burdened in violation of RFRA has a private right of action.

42 U.S.C. § 2000bb-1(c). Although RFRA is unconstitutional

as applied to state governments, City of Boerne v. Flores, 521

U.S. 507, 536 (1997), federal claims remain viable, Gonzales v.

O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,

439 (2006).

 The remaining two claims, not directly at issue here, alleged 5

liability under the Alien Tort Claims Act, 28 U.S.C. § 1350, and

negligent hiring of specified individuals under state law. 

7

 the only cleric available was a priest who urged her to pray to

Jesus.3

The District Court submitted four claims to the jury,

including a claim that Defendants substantially burdened Jama’s

ability to practice her religion in violation of RFRA, and a 4

claim under state law that certain Defendants, including Esmor

and Lima, were negligent in hiring, training, supervising, and/or

retaining guards at the facility. On the RFRA claim, the Court 5

instructed the jury that Jama had to prove either that the officials

“inflicted or constrained conduct or expressions that manifested

some central tenet” of her beliefs, that their acts or omissions
8

“meaningfully curtailed” her “ability to express adherence to her

faith,” or that the officials denied her a “reasonable opportunity

to engage in those activities that are fundamental to her

religion.” (JA 194-95.) To succeed specifically against

Defendant Esmor, the Court instructed that the violations had to

be caused by “an official policy or custom” or “from the actions

of an official with final policy-making authority.” (JA 196.) 

For negligent hiring/training/supervision/retention, the

Court instructed that, under New Jersey law, Jama must prove

that one or more of the enumerated Defendants, including

Esmor and Lima, were negligent, and that their negligence

proximately caused Jama injury. Negligent acts or omissions

within the purview of the claim included failures by the

Defendants to exercise reasonable care in investigating the

guards’ conduct, and failures to exercise reasonable care in

training and supervising the guards to prevent foreseeable harm

to the inmates.

As for damages, if any, the jury was instructed to award

“an amount that will fairly compensate her for any injury she

actually sustained as a result of a defendant’s conduct.”

(JA 207.) The Court explained that Jama claimed as damages

“[p]hysical harm . . . during and after the events at issue,

physical pain, disability, disfigurement, or discomfort, [and]

emotional or mental harm . . . during and after the events at

issue, including fear, humiliation, and mental anguish . . . .”

(JA 208-09.) The Court stated that the jury “must not award

compensatory damages more than once for the same injury” and

that it “must not award her any individual compensatory

damages on each claim if the two claims resulted in the same

injuries.” (JA 209.) Further, “if different injuries are
 Because the jury awarded compensatory damages on what 6

may be termed a negligent oversight claim, the jury essentially

had to find that those guards who were negligently hired,

trained, supervised and/or retained engaged in liability-creating

conduct. In such cases, a plaintiff must prove that the

negligently hired, trained, supervised and/or retained employee’s

“incompetence, unfitness or dangerous characteristics

proximately caused the injury.” Di Cosala v. Kay, 450 A.2d

508, 516 (N.J. 1982).

9

attributable to the separate claims, then you must compensat[e]

Miss Jama for all of her injuries.” (Id.) The Court also

instructed that, “If you return a verdict for Miss Jama on the . .

. RFRA claim[], but Miss Jama has failed to prove

compensatory damages, then you must award nominal damages

of one dollar. A person whose federal rights were violated is

entitled to a recognition of that violation, even if she suffered no

actual injury.” (JA 210.)

The jury found that Jama proved her RFRA claim against

both Esmor and John Lima, but awarded only $1 on the claim.

It indicated on the questionnaire that no RFRA damages were

included in damages awarded on any other claim. The jury also

found that Jama proved negligent hiring, training, supervision,

and/or retention against Esmor, Lima, and two other Defendants,

and awarded $100,000 in compensatory damages on the claim.6

The jury found for Defendants on the two other claims.

Jama moved for an award of attorney’s fees pursuant to

42 U.S.C. § 1988. In ascertaining the degree of Jama’s success

under § 1988, the District Court reasoned that the jury “was not

in a position to clarify whether it had concluded that Jama had

simply not proven any compensable [RFRA] injury . . . , or
10

whether the result reflected the jury’s inability to distinguish

between those and other injuries,” and that the jury may have

“bundle[d] all of Jama’s injuries into one substantial award

under Jama’s Negligence Claims.” Jama, 549 F. Supp. 2d at

606. The Court stated that, based on its assessment of the

evidence, “between 33% and 50% of the jury’s Negligence

Claims award of $100,000 was designed as compensation for

Jama’s RFRA-related injuries.” Id. at 607. The Court

calculated a lodestar of $642,398.57 based entirely on counsels’

work on the RFRA claim, and awarded the entire amount

against Esmor and Lima, the two Defendants found liable under

RFRA. Id. at 613. Esmor and Lima appealed.

II. DISCUSSION

 This Court has jurisdiction to review the award of a

statutory attorney’s fee under 28 U.S.C. § 1291, once the award

is reduced to a definite amount. Interfaith Comty. Org. v.

Honeywell Int’l, Inc., 426 F.3d 694, 701 (3d Cir. 2005). We

review the reasonableness of a fee award for abuse of discretion,

but our review of the legal standard applied in calculating a fee

is plenary. Evans v. Port Auth. of New York & New Jersey, 273

F.3d 346, 358 (3d Cir. 2001). Plenary review also extends to a

district court’s interpretation of a jury’s answers to

interrogatories. See Failla v. Passaic, 146 F.3d 149, 153

(3d Cir. 1998). A district court abuses its discretion when its

decision “rests upon a clearly erroneousfinding of fact, an errant

conclusion of law or an improper application of law to fact.”

Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008)

(internal quotations omitted). 
11

42 U.S.C. § 1988(b) provides that, “In any action or

proceeding to enforce [certain federal statutes including RFRA],

the court, in its discretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s fee as part of the

costs . . . .” 42 U.S.C. § 1988(b) (emphasis added). Appellants

concede that, the jury having awarded nominal damages to Jama

on her fee-eligible RFRA claim, Jama was the prevailing party

for the purposes of § 1988. However, Appellants argue that the

District Court erred in recharacterizing the jury verdict, and that

no fee award can be reasonable as a matter of law because

Jama’s success on the fee-eligible federal claim was de minimis

and the pendent state claim cannot be considered.

 A. Interpretation of the Jury Verdict

We agree with Appellants that the District Court erred in

attributing a portion of Jama’s tort award to her RFRA claim.

The jury was instructed that “[n]ominal damages of one dollar

are designed to acknowledge the deprivation of a federal right,

even where no . . . injury occurred. However, if you find actual

injury, you must award compensatory damages as I instructed

you, rather than nominal damages.” (JA 210.) The jury plainly

indicated on its questionnaire that $1 in damages was awarded

on the RFRA claim, and that no RFRA damages were included

in the award on any other claim. A court generally “must

assume that the jury understood and followed the court’s

instructions.” Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 383

(3d Cir. 2002). We find no inconsistencies in the jury’s answers

to interrogatories that might have required the District Court to

exercise its limited authority to mold the answers to achieve

consistency. See McAdam v. Dean Witter Reynolds, Inc., 896

F.2d 750, 763-64 (3d Cir. 1990). The District Court was thus
In light of the nature of the negligence claim on which Jama 7

prevailed (negligent oversight), and the District Court’s

familiarity with the evidence, it is understandable that the Court

could surmise that negligently hired, trained, supervised, and/or

retained guards caused both compensable RFRA and tort

injuries. Perhaps there was a shortcoming in the unchallenged

special verdict sheet in that the jury was not required to specify

the liability-creating conduct of the guards. However, the jury

was instructed to determine damages according to the claims for

relief, and the District Court did not have the prerogative of

reallocating compensatory damages awarded solely on the

negligent oversight claim.

12

required to presume that the jury determined that no actual

injury was sustained as a result of the RFRA violation, and

could not conclude that any portion of the $100,000 in

compensatory damages was awarded to compensate for a RFRA

violation.7

We accordingly conclude that the District Court’s

assessment of the evidence was based on an improper

interpretation of the interrogatories and verdict sheet, and we

cannot affirm the resulting order awarding an attorney’s fee.

B. Impact of Farrar v. Hobby

Our conclusion that the District Court erred does not end

our inquiry. Appellants argue that, under Farrar v. Hobby, 506

U.S. 103 (1992), no fee may be awarded as a matter of law

because Jama was only awarded nominal damages on her feeeligible RFRA claim. Farrar is plainly distinguishable because

Jama received a substantial award on the litigation as a whole,

whereas the plaintiffs in Farrar received only a nominal award
13

of $1 in total. Farrar, 506 U.S. at 107. Yet even if we were to

ignore the substantial award on Jama’s pendent state claim, we

do not agree with Appellants that Farrar would conclusively

prohibit the award of a fee on Jama’s RFRA claim.

In Farrar, state officials closed a school for troubled

teens and secured an indictment against the owner. Farrar, 506

U.S. at 105. The owner sued, alleging deprivations of liberty

and property without due process. Id. at 106. He, and his

administrators after his death, sought only monetary relief in the

form of $17 million in damages. Id. The jury found, through

special interrogatories, that just one of the six defendants had

deprived Farrar of a civil right. However, the jury expressly

found that the defendant’s conduct did not proximately cause

Farrar’s asserted damages. Id. The district court ultimately

awarded nominal damages of $1 and attorney’s fees. Id. A

divided panel of the Fifth Circuit reversed the award of fees,

holding that the plaintiffs were not prevailing parties, and were

thus ineligible for fees under § 1988. Id. 

The Supreme Court affirmed in a 5-4 decision, but on

different grounds. The Court held that a plaintiff who is

awarded nominal damages is a prevailing party for the purposes

of § 1988. Id. at 114. However, the Court also stated that,

“Although the ‘technical’ nature of a nominal damages award or

any other judgment does not affect the prevailing party inquiry,

it does bear on the propriety of fees awarded under § 1988.” Id.

In determining the reasonableness of fees under § 1988, the

Court continued, “‘the most critical factor . . . is the degree of

success obtained.’” Id. at114 (quoting Hensley v. Eckerhart, 461

U.S. 424, 436 (1983)). Accordingly, when a plaintiff seeking

compensatory damages “recovers only nominal damages
14

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. at 115 (emphasis added) (internal citation omitted).

Justice O’Connor joined the other four justices in the

majority without reservation, but she filed a concurring opinion

that further elaborated on the degree of success inquiry. While

she acknowledged that the disparity between the damages

sought and awarded was important in determining the degree of

success, she stated that this “is not the only consideration.” Id.

at 121 (O’Connor, J., concurring). She asserted that “an award

of nominal damages can represent a victory in the sense of

vindicating rights even though no actual damages are proved.”

Id. Justice O’Connor stated that “courts also must look to other

factors” in assessing success, including “the significance of the

legal issue” decided, and whether the decision “accomplished

some public goal.” Id. at 121-22. Upon considering all of these

“relevant indicia of success,” Justice O’Connor concluded that

Farrar’s victory was de minimis. Id. at 122.

Several courts of appeals, relying on Justice O’Connor’s

concurrence, have permitted fee awards despite the award of

only nominal damages. In Mercer v. Duke University, 401 F.3d

199 (4th Cir. 2005), a female college football player brought a

Title IX discrimination claim against a university after she had

been cut from the football team. Id. at 201. Although the

plaintiff was awarded only nominal damages, the Court of

Appeals for the Fourth Circuit upheld an award of $350,000 in

attorney fees despite the de minimis compensatory relief. Id. at

211. The court concluded that a fee award was within the

district court’s discretion because the legal issue on which the

plaintiff prevailed was significant and the litigation served a
15

public purpose. Id. at 206-09.

 In Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119

(1st Cir. 2004), terminated municipal employees sued city

officials, alleging that their terminations were motivated by the

employees’ political affiliations. Id. at 121. The plaintiffs

brought First Amendment and due process claims. Id. The jury

found for the defendants on the First Amendment claims and

awarded only nominal damages on the due process claim. Id. at

122. The district court awarded an attorney’s fee, and the Court

of Appeals for the First Circuit affirmed. The court of appeals

distinguished the facts of the case at bar from those in Farrar by

applying Justice O’Connor’s factors:

Here, although plaintiffs’ victory was de minimis

as to the extent of relief, the district court

appropriately exercised its discretion to award

fees, as the determination that the municipality

violated plaintiffs’ constitutional rights

represented a significant legal conclusion serving

an important public purpose.

Id. at 125. Other courts of appeals have also adopted Justice

O’Connor’s factors for resolving the degree of success inquiry.

See Cummings v. Connell, 402 F.3d 936, 947 (9th Cir. 2005);

Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997);

Johnson v. Lafayette Fire Fighters Ass’n Local 472, 51 F.3d

726, 731 (7th Cir. 1995); Jones v. Lockhart, 29 F.3d 422, 423-24

(8th Cir. 1994). 

In contrast, we find no case in which a court of appeals

has interpreted Farrar to require the automatic denial of fees
 In adopting these considerations, we do not, as Judge Garth 8

suggests, set aside the majority opinion in Farrar, nor do we

accord Justice O’Connor’s concurrence controlling weight.

While the majority in Farrar stated that a reasonable fee is

usually no fee when a plaintiff receives only nominal damages,

the case involved extreme facts and the majority provided no

guidance for distinguishing the usual from the unusual case.

Justice O’Connor set forth a practical method for resolving such

questions that other courts of appeals have found helpful. Also,

we do not agree with Judge Garth that a nominal award on a

RFRA claim necessarily amounts to a technical and de minimis

victory. The jury found that Esmor and Lima violated Jama’s

rights by substantially burdening her exercise of religion. The

impact of such a violation on a victim may be uniquely difficult

to express in monetary terms, but the significance of the right

vindicated and the purpose served by the litigation cannot be

overlooked and, especially in the prison setting, should not be

diminished.

16

that Appellants seek when only nominal damages are awarded.

We agree with our sister courts of appeals that a district court

determining the degree of a plaintiff’s success should consider

not only the difference between the relief sought and achieved,

but also the significance of the legal issue decided and whether

the litigation served a public purpose.8

Yet our interpretation of Farrar only takes us part way in

resolving this appeal. While Jama might be entitled to at least

a partial fee award solely on the basis of her RFRA claim, Jama

received more than mere nominal damages as a result of her

litigation. The substantial award on her pendent state claim

distinguishes her from the plaintiffs in Farrar, Mercer, and

Diaz-Rivera, who received only nominal damages in total. We
 Appellants also assert another “exception” for allowing the 9

consideration of state claims by pointing to cases where feeeligible claims were not decided for prudential reasons, but fees

were permitted on the basis of other successful claims. Since it

is undisputed that Jama prevailed on her fee-eligible RFRA

claim, these cases are all distinguishable and of little assistance.

 For instance, Appellants cite Maher v. Gagne, 448 U.S. 122 10

(1980), but the language cited dealt with an Eleventh

Amendment issue that is irrelevant here. Id. at 132. Moreover,

Maher cannot support a restrictive rule on fee awards because

the Court interpreted § 1988 expansively, ruling that fee awards

are permissible on non-constitutional claims under 42 U.S.C.

§ 1983. Id. at 128. Appellants also cite to Luria Brothers & Co.

v. Allen, 672 F.2d 347 (3d Cir. 1982), a case in which attorney’s

fees were denied, but this case is plainly distinguishable because

the plaintiff in Luria, unlike Jama, did not prevail on a

17

must therefore decide whether Jama’s success on her state law

claim may independently inform the degree of her success under

§ 1988.

C. Pendent State Claim

We are surprised to find that the impact of success on

state claims as related to the award of fees under § 1988 has not

been squarely addressed by this Court, and has been sparsely

litigated elsewhere. Appellants argue that pendent state law

claims may only be considered in the success inquiry if the legal

standards and operative facts for the state and federal feeeligible claims are identical. However, the cases relied on by 9

Appellants do not really support this restrictive rule because they

either permitted fee awards or were materially distinguishable.10
fee-eligible federal claim. Id. at 358. Other cases asserted by

Appellants are Martini v. Federal National Mortgage Ass’n,

178 F.3d 1336 (D.C. Cir. 1999), and Passantino v. Johnson &

Johnson Consumer Products, Inc., 212 F.3d 493 (9th Cir. 2000).

Martini involved a determination as to whether a federal

damages cap should apply where the state and local standards

instructed to the jury were identical. 178 F.3d at 1349-50. This

case is of little help because no fee award was at issue. In

Passantino, a plaintiff prevailed on her federal Title VII

retaliation claims, but did not prevail on her federal Title VII

discrimination claims. Passantino, 212 F.3d at 517-18. In short

shrift, the court of appeals rejected defendant’s argument that

the attorney fee should have been reduced for limited success,

noting that the claims were “inextricably intertwined.” Id. at

518. No state claim was involved, and nothing suggests that the

court would have required the claims to be inextricably

intertwined in order to conclude that the fee award was within

the district court’s discretion.

18

Appellants point to no case where a court denied fees to a

plaintiff who had prevailed on a qualifying federal claim and

also received a substantial award on a state law claim.

Jama contends that the express language of § 1988(b)

authorizes the consideration of pendent state claims in awarding

fees when a plaintiff prevails on a fee-eligible claim. The

statute does not refer to “claims,” but instead provides that fees

may be awarded, “In any action or proceeding to enforce”

various provisions including RFRA. 42 U.S.C. § 1988(b)

(emphasis added). Under the plain text of the statute, Jama

asserts, it is within a district court’s discretion to consider the

success of the action or proceeding as a whole, to include

success on pendent state law claims. 
19

We agree that the language of § 1988(b) seems to be

sufficiently broad to endorse the inclusion of state claims in the

consideration of overall success. However, we do not find

precedent on point that clearly adopts this interpretation as

conclusive. Jama relies on Hensley v. Eckerhart, 461 U.S. 424

(1983), in which plaintiffs obtained mixed results in a case

involving multiple federal claims. There, the Supreme Court

instructed the district court to consider whether the unsuccessful

and successful claims shared a common core of facts or were

based on related legal theories, in order to inform the “results

obtained” inquiry. Id. at 434, 437. While Hensley provides the

standard for determining whether claims are related under

§ 1988, the case did not specifically involve pendent state

claims, nor did the clarifying and reaffirming case of Texas State

Teachers Ass’n v. Garland Independent School District, 489

U.S. 782 (1989). 

The Court of Appeals for the Second Circuit decided a

case closer to the one before us in Bridges v. Eastman Kodak

Co., 102 F.3d 56 (2d Cir. 1996), cert. denied sub nom., Yourdon,

Inc. v. Bridges, 520 U.S. 1274 (1997). The plaintiffs in Bridges

alleged that they were sexually harassed by their employer in

violation of Title VII and an analogous New York antidiscrimination statute. Id. at 57. The district court held a jury

trial on the state claims and a concurrent bench trial on the Title

VII claims. Id. The jury found that the defendants violated the

state law and awarded plaintiffs substantial amounts for back

pay and compensatory damages. Id. The court made parallel

findings under Title VII, but awarded no monetary relief on the

federal claims, specifically in order to avoid double recovery.

Id. at 58. The district court awarded fees to the plaintiffs
 The jury here was instructed not to compensate more than 11

once for the same injury. However, the interrogatory form

asked for the amount of damages attributable to each claim, and

asked whether RFRA damages were included in any award on

another claim. The jury indicated that only $1 was awarded on

the RFRA claim, and that no RFRA damages were included in

an award on any other claim. We thus cannot conclude that the

20

 without making any reduction for lack of success on the federal

claim. Id.

The defendants argued on appeal that the plaintiffs were

ineligible for attorney’s fees because there was no award on the

fee-eligible claim, and, alternatively, that the award should have

been reduced due to the plaintiffs’ limited success. Id. The

Court of Appeals for the Second Circuit disagreed on both

points in a brief opinion. The court concluded that the plaintiffs

prevailed on the fee-eligible claim, and distinguished Farrar

because Farrar did not involve “a plaintiff who had achieved

substantial success - and a large monetary award - on pendent

state-law claims.” Id. at 59. The court affirmed the district

court’s judgment of award without any reduction. Id. at 60.

Although Bridges helps Jama, the case is distinguishable

because the state and federal claims at bar were brought under

parallel employment discrimination statutes. Here, the elements

of Jama’s state negligence and federal RFRA claims are not so

closely aligned. Moreover, the court in Bridges specifically

declined to award damages on the federal claim in order to avoid

double recovery, suggesting that the plaintiffs would have

recovered on the federal claim but for the jury award on the state

claim. Yet nothing in Bridges can be read to require identical 11
jury awarded nominal damages on the RFRA claim merely to

avoid double recovery.

21

or nearly identical state and federal claims in order for the state

claim to be considered as part of the degree of success inquiry.

The Bridges panel cited approvingly to an earlier case in

the Second Circuit that aligns more closely with the instant

circumstances. In Milwe v. Cavuoto, 653 F.2d 80 (2d Cir.

1981), the plaintiff was injured in a scuffle with police officers.

Id. at 81. Police officials thereafter secured a warrant for her

arrest, and charged her with interfering with a police officer and

disturbing the peace. Id. The charges were subsequently

dismissed. Id. The plaintiff brought a suit against several

officers and supervisors for compensatory and punitive damages

under 42 U.S.C. § 1983, and on pendent state law theories.

After a trial, the jury found for the plaintiff against one

defendant on a constitutional excessive force claim and a

pendent state assault claim. The jury awarded $1 and $1,320 on

these claims, respectively. The jury also found for the plaintiff

against one other defendant on a constitutional claim relating to

her arrest, and a claim for false arrest under state law. The jury

awarded $1 in total for both of these claims. Id.

The district court denied fees under § 1988, and the

plaintiff appealed. Defendants argued that fees were

inappropriate since, inter alia, the only significant damages were

awarded on the pendent state assault claim. Id. at 84. The court

of appeals reversed for two reasons. First, the court quoted

Maher v. Gagne, and stated that “attorney’s fees are available in

cases ‘in which the plaintiff prevails on a wholly statutory,

non-civil rights claim pendent to a substantial constitutional
 Appellants argue that allowing a district court to consider 12

state common law claims would violate Maher’s “wholly

statutory” language. We are not persuaded. In Maher, the

Supreme Court was distinguishing between clearly fee-eligible

constitutional civil rights claims and statutory Social Security

claims under § 1983. The “wholly statutory” language marked

an expansion of § 1988 to include non-constitutional claims.

We agree with the District Court that the wholly statutory

distinction has no bearing on this case.

 We also note that the Court of Appeals for the First Circuit 13

treated Milwe approvingly in Aubin v. Fudala, 782 F.2d 287,

291 (1st Cir. 1986) (citing Milwe and determining that an award

on a pendent state negligence claim may inform the success

inquiry where the plaintiff prevailed with a lesser award on a

fee-eligible federal claim), overruled on other grounds by Crowe

22

claim.’” Id. (quoting Maher, 448 U.S. at 132). The court thus 12

extended Supreme Court jurisprudence regarding pendent

federal claims to pendentstate claims. The court also concluded

that, leaving aside the state law claim, the award of $1 on a feeeligible constitutional claim could alone support the award of

fees. Id. at 84. The court accordingly remanded the matter for

further consideration. Id.

The second reason given in Milwe for permitting fees,

namely consideration of the fee-eligible claim only, should be

read with caution in light of Farrar and our discussion above.

However, Farrar did not involve a pendent state law claim, and

thus has no effect on the first reason for permitting fees in

Milwe. While we recognize that Milwe predates many important

§ 1988 cases, we find no case that contradicts or undermines the

Milwe court’s reasoning with regard to pendent state claims.13
v. Bolduc, 365 F.3d 86 (1st Cir. 2004). 

23

Based on these considerations, we cannot agree with Appellants

that a district court may only consider an award on a pendent

state claim if the operative facts or legal standards of the state

and federal claims are identical.

While identity between the claims is not required, the

state and federal claims must certainly bear some relation in

order for the state claim to be considered under § 1988.

Although Hensley did not address pendent state claims, the case

does provide helpful guidance. In Hensley, the Supreme Court

described how a district court should determine whether

unsuccessful claims are sufficiently related to claims on which

a plaintiff prevailed in order to include work on the unsuccessful

claims in a fee award. The Court instructed that claims that

“involve a common core of facts [or are] based on related legal

theories” are related for these purposes. Hensley, 461 U.S. at

435. The Court further instructed that “[t]here is no precise rule

or formula for making these determinations,” and that the

district court “necessarily has discretion in making this equitable

judgment.” Id. at 436. The Court also noted that “[a] request

for attorney’s fees should not result in a second major

litigation.” Id.

Applying this reasoning here, we conclude that the

Hensley standard should guide a district court’s consideration of

pendent state claims in a litigation where a plaintiff has

prevailed on a fee-eligible federal claim. We will vacate the

award and remand the matter for the District Court to make this

discretionary determination in the first instance. The District

Court should determine whether Jama’s RFRA and pendent
Although we do not have the complete trial record before us, 14

statements by the District Court suggest that it should not be

difficult to reconsider the relationship between the state and

federal claims under the instant standard. For instance, the

District Court stated in its opinion that “the RFRA-related

conduct was . . . a significant part of Jama’s Negligence

Claims,” suggesting that the Court identified legal and/or factual

relationships between the two claims. Jama, 549 F. Supp. 2d at

606.

 Judge Garth contends that the jury’s compensatory award on 15

the negligence claim and mere nominal award on the RFRA

claim conclusively forecloses the existence of a sufficient

relationship between the state and fee-eligible claims, and our

decision therefore intrudes upon the role of the jury. We do not

agree. Hensley makes clear that an attorney’s work on an

unsuccessful claim may be compensated if the claim is factually

or legally related to a claim on which the plaintiff prevailed.

Hensley, 461 U.S. at 435. The question of whether particular

claims, successful or otherwise, arise from a common core of

facts does not turn on a jury’s verdict. Moreover, a jury’s

factual findings cannot possibly resolve relationships between

legal theories. Hensley leaves no doubt thatsuch inquiries under

§ 1988 are left to the discretion of district court. Id. at 436.

24

state negligence claims involved a “common core of facts” or

were based on “related legal theories.” If the claims are 14

related under this standard, the results on Jama’s tort claims may

inform the degree of Jama’s overall success for the purposes of

§ 1988. Whether or not the state and federal claims are 15

related, the District Court should also 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. Thus, while the jury’s nominal award must undoubtedly
25

color the degree of Jama’s success on her RFRA claim, the

District Court should also consider the significance of the legal

issue on which she prevailed and determine whether her victory

served a public purpose.

D. Reasonableness of the Fee Awarded

Appellants argue in the alternative that, even if a fee

award is permissible in this case, the $642,398.57 amount

awarded by the District Court is unreasonably high. Since we

conclude that the District Court’s degree of success analysis was

predicated on an erroneous interpretation of the jury verdict, we

cannot review the overall figure until the Court has reconsidered

Jama’s success under the standards discussed above. However,

we will address two issues relating to the overall award that are

suitable for review at this time in order to provide guidance on

remand. 

Appellants argue that the District Court abused its

discretion by arriving at unreasonable hourly rates. A District

Court’s determination of market billing rates “is a factual

question which is subject to a clearly erroneous standard of

review.” Smith v. Philadelphia Hous. Auth., 107 F.3d 223,

225(3d Cir. 1997). In moving for a fee award,

The plaintiff bears the burden of producing

sufficient evidence of what constitutes a

reasonable market rate for the essential character

and complexity of the legal services rendered in

order to make out a prima facie case. Once the

plaintiff has carried this burden, defendant may
26

contest that prima facie case only with appropriate

record evidence.

Id. (internal citations omitted). “Under the clearly erroneous

standard, a finding of fact may be reversed on appeal only if it

is completely devoid of a credible evidentiary basis or bears no

rational relationship to the supporting data.” Shire US Inc. v.

Barr Labs., Inc., 329 F.3d 348, 352 (3d Cir. 2003) (internal

quotations omitted). 

In determining the hourly rates in the instant matter, the

District Court relied on a previous analysis it had made in

connection with a request for discovery sanctions against Esmor.

Jama v. Esmor Corr. Servs., Inc., 2007 W.L. 4166016 (D.N.J.

Nov. 20, 2007). Jama’s counsel supported its rates with

affidavits listing similar rates that had been accepted by the

District Court for the District of New Jersey in prior cases. The

District Court accepted counsel’s submitted rates, after making

a reduction in fees from New York market levels to the levels of

the metropolitan Newark market. Id. at *3. The attorney hourly

rates accepted by the District Court for Debevoise & Plimpton

LLP ranged from $600 for a partner to $205 for a first-year

associate, and $400 for Ms. Penny Venetis of the Rutgers

Constitutional Litigation Clinic. 

Appellants argue that their own evidence regarding rates,

and rates accepted in other cases, demonstrated that the rates

used by the District Court are unreasonable. While the rates

applied here may have been higher than rates applied in other

cases, we find nothing in the record indicating that the District

Court’s determination was clearly erroneous. Jama’s counsel

submitted affidavits and prior examples of similar rates. The
27

District Court weighed the sophisticated nature of the work

involved, and made a reduction in Debevoise’s rates to bring

them in line with the Newark market. The rates adopted are

neither devoid of a credible evidentiary basis, nor do they lack

a rational relationship to the supporting data, and we will

accordingly not disturb them on appeal.

Finally, Appellants argue that the District Court erred by

including in the award $1,485.70 for expert fees because such

fees are not authorized in RFRA claims. Jama concedes this

point, and disclaims her entitlement to $1,485.70. Thus, the

District Court shall exclude these expert fees from any future

award.

III. CONCLUSION

The District Court’s degree of success inquiry under

§ 1988 was based on an impermissible reconstruction of the jury

verdict, and we will VACATE the resulting order awarding an

attorney’s fee. We will REMAND the matter for the District

Court to reconsider Jama’s motion for an attorney’s fee award

consistent with this Opinion.

GARTH, Circuit Judge, dissenting:

Let me recount the fundamental issues presented on this

appeal—in effect: “let’s review the bidding.” 

1. The complaint filed by Jama sought $250,000 in

statutory damages for violations of the Religious Freedom
28

Restoration Act (“RFRA”); it also sought a total of nearly $5

million for all damages including general negligence damages,

punitive damages, and RFRA.

2. RFRA provides that, if a violation is found, not only

may damages be awarded but reasonable attorney’s fees may be

assessed. 42 U.S.C. § 1988(b). 

3. After 23 days of trial before a jury which heard

evidence of RFRA violations and tortious conduct by some of

the defendants, the jury was charged specifically by the District

Court as follows: 

You must not award compensatory damages more

than once for the same injury. For example, if

Miss Jama prevails on two claims and establishes

a dollar amount for her injuries, you must not

award her any individual compensatory damages

on each claim if the two claims resulted in the

same injuries. Miss Jama is only entitled to be

made whole once, and may not recover more than

she has lost. Of course, if different injuries are

attributable to the separate claims, then you must

compensation [sic] Miss Jama for all of her

injuries. . . .

If you return a verdict for Miss Jama on the

ATCA and the RFRA claims, but Miss Jama has

failed to prove compensatory damages, then you

must award nominal damages of one dollar. . . .

However, if you find actual injury, you must

award compensatory damages as I instructed you,
 The only other case cited by Jama in which interrogatories 16

were utilized by the District Court was Farrar itself. However,

the interrogatories in Farrar were not detailed as they were here,

did not involve the distinction between eligible and ineligible

fee statutes, and did not afford the explicit and unequivocal

answers to the interrogatories that the instant verdict provides.

29

rather than nominal damages.

J.A. 209-10. 

4. No exceptions were taken to the charge. No additions

were sought by the plaintiffs to the charge. See Farrar v. Cain,

756 F.2d 1148, 1150-51 (5th Cir. 1985), aff’d 506 U.S. 103

(1992) (failure to object to the jury charge and special

interrogatories precludes our review in the absence of plain error

or manifest miscarriage of justice).

5. The evidence before the jury consisted of actions

which violated RFRA, but also consisted of other negligent

tortious actions by the defendants. We note them infra.

6. The jury was asked to answer a series of interrogatory

questions in delivering its verdict. The jury complied fully 16

with the District Court’s instructions and answered the relevant

interrogatories as follows: 

1. [not relevant to this appeal]

2. Has Ms. Jama proved by a preponderance of
 The jury found that the RFRA claim was not proved against 17

Defendants Slattery, Staley, and McClure.

“Yes” was the first answer given by the jury. That answer 18

was crossed out and “No” was entered in its place.

30

the evidence her Religious Freedom Restoration

Act claim against Esmor . . . and/or Lima?

Yes17

. . .

2F. What is the amount of compensatory damages

to which Ms. Jama is entitled on account of her

RFRA claim alone, without considering damages

on account of any other claim on which you found

a Defendant liable?

$1.00

2G. Was the amount of the damages awarded on

the RFRA claim included in the amount of

damages awarded on any other claim, and, if so,

which claims?

. . .

Negligence Claim #1: No18
31

. . . 

2H. Is Ms. Jama entitled to punitive damages

against any Defendant found liable on her RFRA

claim?

No

. . .

3F. What is the amount of the compensatory

damages to which Ms. Jama is entitled on account

of her negligence #1 claim?

$100,000

J.A. 240-43. 

7. No exceptions or objections were taken to the form or

to the content of the interrogatories, nor were additions sought

to the interrogatories.

8. When the jury returned with its verdict, the Clerk of

the Court had the following exchange with the jury foreperson:

THE CLERK: Okay. What is the amount of

compensatory damages to which

Miss Jama is entitled on account of

her RFRA claim alone, without

considering damages on account of

any other claim on which you

found a defendant liable?
32

THE FOREPERSON: One dollar.

THE CLERK: Was the amount—I’m sorry. Was

the amount of damages awarded on

the RFRA claim included in the

amount of damages awarded on any

other claim?

THE FOREPERSON: No.

THE CLERK: Okay. Is Miss Jama entitled to

punitive damages against any

defendant found liable on her

RFRA claim?

THE FOREPERSON: No.

J.A. 232 (emphasis added).

9. The District Court awarded attorney’s fees holding

that 33% to 50% of the damages awarded were allocable to the

RFRA claim. 

10. My colleagues in the majority correctly hold that the

District Court erred in its determination, and I agree with them.

Where I part company with my colleagues is their stark refusal

to recognize the jury’s explicit declaration, made after receiving

the District Court’s specific instructions, that the $1 awarded for

the RFRA claim was not included in the calculation of the

$100,000 awarded on the general state negligence claim. In

other words, the fee-eligible RFRA conduct punished by the $1

award was wholly apart from, and distinct from, the
33

non-fee-eligible conduct punished by the award of $100,000 for

negligent conduct. 

Thus, in this case, only the nominal damages may be

considered for purposes of fee-eligible attorney’s fees, and the

only reasonable attorney’s fee is no fee at all. Farrar v. Hobby,

506 U.S. 103 (1992). 

I would not remand to the District Court. Rather, I would

reverse outright and instruct the District Court to deny all

attorney’s fees as I believe no further consideration is required.

I.

The majority offers two theories under which it believes

the District Court could award fees. First, under Hensley v.

Eckerhart, 461 U.S. 424 (1983), the District Court could

determine that the state claim of negligent hiring, training,

supervision, and retention involved a “common core of facts” or

was based on a “related legal theory” such that the $100,000

award on that claim could enhance the overall “degree of

success” of the $1 award obtained on the RFRA claim. But the

jury’s verdict, expressed unequivocally and unambiguously in

the interrogatory answers and in the answers to the Court Clerk,

forecloses this argument by drawing an unmistakable line

between the two claims. Alternatively, the District Court might

apply Justice O’Connor’s concurrence in Farrar and find that

factors other than the amount of damages make the RFRA

award, standing alone, more worthy than a “technical” or “de

minimis” victory. Again, however, this argument is completely

undercut by the fact that the jury explicitly set apart the conduct

ascribable to the RFRA claim, and determined that this conduct
34

merited no damages other than the bare acknowledgment that a

violation occurred.

A.

An examination of the verdict form rules out the

possibility that the plaintiff’s success on the negligence claim

had any bearing on the nominal award on the RFRA claim.

Interrogatory number 2G asked specifically whether “the

amount of the damages awarded on the RFRA claim [was]

included in the amount of damages awarded on any other

claim.” J.A. 241. In response, the jury initially marked “Yes,”

scratched out that response, and then marked its final answer as

“No.” Id. This amended response clearly demonstrates that the

jury not only considered, but ultimately rejected, the notion that

the RFRA award and the negligence award shared any common

basis. All of the proscribed conduct is distinct from the general

negligence conduct. So too are the defendants who have been

found liable. Only two defendants have been found liable for

the RFRA conduct, whereas four defendants have been found

liable for the general negligence conduct, thereby emphasizing

the lack of legal and factual overlap between the RFRA and

negligence claims.

The underlying facts bear out this dichotomy. Indeed, the

majority itself notes that Jama presented “evidence of general

indignities suffered in the Facility,” on the one hand, and

“evidence specifically relating to restrictions on her practice of

religion,” on the other hand. Maj. op. 5. The majority then

enumerates the conduct that fell within the latter category,

including exposing Jama naked to common view, forcing her to

eat pork, disrupting her prayers, and defiling her copy of the
35

Koran. 

The majority does not, however, explain that the “general

indignities” were of an entirely different nature. Toilets were in

close proximity to sleeping areas and were clogged and

overflowing with human waste. Food supplies were insufficient

and often consisted of spoiled or rotten food. The tainted food

caused vomiting and diarrhea, which exacerbated the already

overwhelmed plumbing. Heating was inadequate in the winter

causing ice to collect on the cell walls, while prisoners were

deprived of warm clothing and sufficient blankets. Female

prisoners, like Jama, were given only one sanitary napkin per

month. The guards themselves were physically and

psychologically abusive to the prisoners regardless of religion.

The only possible understanding of the jury’s answer to

interrogatory number 2G is that the jury segregated these general

indignities from the religious indignities, and then concluded

that one set (the general conduct) merited $100,000 in

compensatory damages while the other set (the RFRA conduct)

merited none. The jury explicitly disavowed any overlap in the

damages it awarded; accordingly, neither we nor the District

Court may alter that verdict by conferring the success obtained

on the negligence claim to the RFRA claim. By altering the

jury’s verdict, the District Court erred in assuming that the jury

ignored its instructions and acted improperly. It is an “almost

invariable assumption of the law that jurors follow their

instructions.” Shannon v. United States, 512 U.S. 573, 585

(1994) (quoting Richardson v. Marsh, 481 U.S. 200, 206

(1987)). Neither the District Court nor my colleagues in the

majority have the authority to alter the jury’s findings or to

construe the jury’s findings in a way that is inconsistent with the
36

verdict.

The Seventh Amendment provides that “no fact tried by

a jury, shall be otherwise reexamined in any Court of the United

States, than according to the rules of the common law.” U.S.

Const. amend. VII.; see also Davis v. Omitowoju, 883 F.2d

1155 (3d Cir. 1989). My colleagues in the majority would

permit the District Court to substitute its judgment for the jury’s

verdict by circumventing the jury’s actual RFRA award and

adding to it a portion of the negligence award so that

fee-shifting may be achieved. The majority opinion, by

supplanting the jury’s verdict and factfinding with the District

Court’s factfinding, has thereby violated the proper roles of

judge and jury under the Constitution.

I believe the verdict form is definitively dispositive in

this case.

B.

All we are left with, then, is the $1 award standing alone,

irrespective of the $100,000 award. Viewed thus, this case

reveals itself to be an unexceptional civil rights case where the

plaintiff has prevailed but failed to prove any damages. In

Farrar, the Supreme Court announced the default rule 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.”

506 U.S. at 115 (citation omitted). 

Subsequently, several courts of appeals have affirmed

that a nominal victory should receive a fee award only in the
37

rare or unusual case. See Pino v. Locascio, 101 F.3d 235, 238

(2d Cir. 1996) (“[W]hile there is no per se rule that a plaintiff

recovering nominal damages can never get a fee award, Farrar

indicates that the award of fees in such a case will be rare.”);

Doe v. Chao, 511 F.3d 461, 467 (4th Cir. 2007) (interpreting

Farrar as permitting fee awards only “in some rare cases”);

Pouillon v. Little, 326 F.3d 713, 717 (6th Cir. 2003) (concluding

that the plaintiff had failed to distinguish his case “from the

‘usual’ case where a prevailing civil rights plaintiff is not

entitled to attorney’s fees when all that he has won is . . .

nominal damages”); Maul v. Constan, 23 F.3d 143, 146 (7th Cir.

1994) (stating that “attorney’s fees are not appropriate simply

because plaintiff successfully establishes that his constitutional

rights have been violated”); Wilcox v. City of Reno, 42 F.3d 550

(9th Cir. 1994) (“Farrar teaches that an award of nominal

damages is not enough” to support an award of fees without

some other tangible result.); Gray ex rel. Alexander v. Bostic,

___ F.3d ___, 2009 WL 1636625, at *4 (11th Cir. 2009)

(“Plaintiffs in nominal-damage cases should not be awarded

attorney’s fees in any but exceptional circumstances.”). 

The majority sets aside the controlling opinion in Farrar,

however, and turns instead to Justice O’Connor’s concurrence

for the proposition that fee awards are occasionally permitted

despite an award of only nominal damages. But Justice

O’Connor’s concurring opinion—not joined by any other

member of the Court—is just that: it is her own explanation of

how she herself would like to hold. Farrar, 506 U.S. at 116

(O’Connor, J., concurring) (“I join the Court’s opinion and

concur in its judgment. I write separately only to explain more

fully why, in my view, it is appropriate to deny fees in this

case.”). Five justices including Justice O’Connor joined the
38

majority opinion in holding that a $1 nominal fee does not

usually entitle the plaintiff to § 1988(b) attorney’s fees. There

was no plurality for Justice O’Connor’s concurring opinion to

join or to bolster, and therefore we do not look to it for the

“narrowest grounds” of a splintered decision. See Marks v.

United States, 430 U.S. 188, 193 (1977) (“When a fragmented

court decides a case and no single rationale explaining the result

enjoys the assent of five Justices, the holding of the Court may

be viewed as that position taken by those Members who

concurred in the judgments on the narrowest grounds.”)

(emphasis added) (citation and quotation marks omitted); see

also Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 693

(3d Cir. 1991) (“In a run-of-the-mill case where a majority of

the Justices endorse a single legal standard, lower courts simply

follow that standard.” (citation omitted)).

Moreover, to the extent that Justice O’Connor’s

concurrence is attractive, it only elaborates that, in some cases,

a fee award might be justified by the presence of other factors,

such as a significant legal issue or the accomplishment of some

public goal, which elevate the nominal damages beyond a mere

“technical” or “de minimis” victory. Id. at 121-22 (O’Connor,

J., concurring). And, in some unusual cases, courts have indeed

cited these factors in affirming fee awards for nominal damages.

See, e.g., Mercer v. Duke Univ., 401 F.3d 199 (4th Cir. 2005)

(noting that the case involved a question of first impression that

had broader implications for all women participating on

traditionally male school sports teams); Diaz-Rivera v.

Rivera-Rodriguez, 377 F.3d 119 (1st Cir. 2004) (concluding that

the plaintiffs’ victory in a political discrimination suit against

their municipality was a significant legal conclusion serving an

important public purpose).
39

Nevertheless, an award of attorney’s fees remains

inappropriate in the ordinary civil rights case where the only

damages obtained were nominal. See Pino, 101 F.3d at 239

(“The vast majority of civil rights litigation does not result in

ground-breaking conclusions of law . . . .”); Maul, 23 F.3d at

146 (observing that all “Section 1983 claims necessarily involve

the violation of a right, privilege or immunity”). 

Indeed, none of the indicated factors are present in this

case. Nothing in the record suggests that Jama’s victory on her

RFRA claim was anything but a technical and de minimis

victory. Even the District Court was unable to justify awarding

fees for Jama’s RFRA claim without borrowing substantially

from the general negligence claim. Without the ability to

conflate these two claims, however, the District Court would

only be left to conclude that no fee award is appropriate.

II.

Because I would hold that the District Court is entirely

precluded by the jury’s special interrogatories and verdict form

from augmenting the nominal damages on the RFRA claim with

the $100,000 damages on the general negligence claim, I would

hold that the District Court’s judgment must be reversed and

that the District Court must be instructed that no attorney’s fees

are to be allowed. Therefore, I respectfully dissent from the

majority’s opinion, which remands to the District Court for

further consideration.