BY REINFORCING a rule recently announced by the Second Circuit to narrow the award of attorney fees in civil rights cases, a Manhattan federal appeals panel has rejected most of a fee request by college students who challenged the use of their mandatory activity fees to fund an ideological group.
Declaring that the "most important factor in determining the reasonableness of a fee is the degree of success obtained," as was enunciated in an earlier decision in Pino v. Pocasio (NYLJ, Dec. 3, 1996), a two-judge panel of the U.S. Court of Appeals for the Second Circuit upheld a lower court order to allow only $ 25,000 of a request of more than $ 558,000 by the students. Judge Ellsworth A. VanGraafeiland, originally on the panel, recused himself.
In the case decided this week, Carroll v. Blinken, 95-9153, a group of students from the State University of New York at Albany had contended that the use of $ 3 of their mandatory $ 55 activity fee to support the New York Public Interest Research Group (NYPIRG) violated their constitutional rights. In 1992, a Second Circuit panel ruled that while the students could be required to pay the fee, it must be used for on-campus activities and that NYPIRG could no longer automatically enroll every student paying the fee (NYLJ, Feb. 18, 1992). "The relief obtained was thus more in the way of a judicial pronouncement than a judgment with substantial, concrete effect," said Circuit Judge Ralph K. Winter, writing for a unanimous court which included Circuit Judge Joseph M. McLaughlin. Invoking Pino, which was issued by the same two judges with Judge VanGraafeiland, Judge Winter added that a "substantial fee award" cannot be justified in civil rights cases where the damage award is "nominal or modest," the injunctive relief "has no systemic effect of importance," and "no substantial public interest is served."
The students’ initial attorney fee request after the 1992 Second Circuit decision was denied in full by Southern District Judge Richard Owen on the grounds that they had not "prevailed." The Second Circuit reversed that decision, finding that the students had won on the automatic membership issue.
After a remand, Judge Owen granted the students an award of $ 25,000 against NYPIRG, denying the rest of their request based on his finding that they had failed to segregate the number of hours spent on the compensable membership claim from the time spent on the noncompensable funding claim.
Although declaring that the "segregation insisted upon by the district court is not feasible," the panel nevertheless found that the award was "reasonable" in view of the "minimal" relief obtained by the students. In addition to pointing out that the students received no damage award, Judge Winter said they "succeeded only in conditioning NYPIRG’s continued receipt of a portion of mandatory fees upon its ceasing to advertise inflated membership numbers and upon its making expenditures on the Albany campus equal to the fees received."
The students, he added, "failed on their far more significant claim of preventing NYPIRG’s receipt of such fees under any circumstances." While conceding that the students "achieved more than strictly nominal relief," Judge Winter concluded that the end result of the suit had little "practical effect" since it merely imposed a limitation on NYPIRG’s "power to shuffle its funds among campuses."
The panel, however, remanded the case to Judge Owen, instructing him to allocate liability for the fee award between SUNY and NYPIRG since the students had prevailed against both on the membership claim. Douglas Foster and Martin S. Kaufman of the Atlantic Legal Foundation Inc. represented the students. Douglas W. Henkin, Alexander R. Sussman and Jocelyn Lee Jacobson of Fried, Frank, Harris, Shriver & Jacobson represented NYPIRG. Assistant New York Attorney General Jeffrey I. Slonim represented the government.