Court of Appeals wants to further cut attorneys' fees in student speech case

Victorious plaintiffs in civil rights case are entitled to attorneys' fees from the losing defendants. This allows plaintiffs without money to hire a lawyer who can pursue the case in the understanding that the attorney will recover fees for his successful effort. The process is not always so simple, however.

The case is Husain v. Springer, a summary order decided on August 29. This case was filed in 1997. CUNY students -- editors of the student newspaper -- sued the college under the First Amendment after defendants retaliated against them for their editorial content. The retaliation took the form of the College's decision to void student government elections because the newspaper had endorsed student candidates in violation of College rules. The Second Circuit's decision in 2007 was so interesting and controversial that it prompted me to start writing this blog in the first instance. Interesting because the 2-1 majority said that voiding the student government election results was a form of retaliation, and controversial because Judge Jacobs dissented from the ruling and said the case was so trivial and silly that he did not even bother to read the majority decision.

Since plaintiffs won the case, their lawyer moved for attorneys' fees. What complicates matters is that plaintiffs each won a dollar in damages. In some civil rights cases, a low damages award disentitles the plaintiff from winning any attorneys' fees. But First Amendment cases often do not result in large damages awards, so fees are available if the plaintiffs as a practical matter did  not merely win a nominal victory. Here, plaintiffs did not win a trivial victory because they defendants' conduct chilled plaintiffs' speech, and they agreed to repeal the offending student election rules that prompted plaintiffs to bring the lawsuit in the first instance. So the district court properly awarded plaintiffs their attorneys' fees.

What the district court got wrong, the Second Circuit (Jacobs, Calabresi and Livingston) says, was awarding plaintiffs approximately $233,000 in fees and costs. Plaintiffs requested more than $800,000 in fees, so the actual award was much less than what they wanted. The Court of Appeals says plaintiffs should recover even less than $233,000 because (1) plaintiffs sought but did not receive any punitive damages against defendants, (2) they abandoned many claims in the course of the litigation and (3) they lost many of the claims on the merits. Also, the case established no new principle of law, calling into question the huge number of hours plaintiffs' lawyer spent on the case. For these reasons, the case is sent back to the district court to reduce the fees award even further.