Civil rights suits often are possible only because of statutory provisions authorizing courts to award attorney’s fees to prevailing plaintiffs. In two recent decisions, however, the U.S. Court of Appeals for the Second Circuit, led by former Chief Judge John Walker and current Chief Judge Dennis Jacobs, has substantially reduced the fees available to Manhattan civil rights lawyers who file cases outside the U.S. District Court for the Southern District of New York. Even more troubling, the court did so in terms that threaten to undermine fee awards more broadly.
A Fundamental Shift
The first sign of a significant shift in the Second Circuit’s approach to attorney’s fees in civil rights cases came in Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany,1 first decided in April 2007 and amended twice over the following year. As noted in an earlier column, Arbor Hill was a voting rights case brought in the Northern District of New York in which the plaintiffs were represented by a Manhattan-based private law firm and a public-interest organization from Washington, D.C. The primary question in the Second Circuit concerned application of the so-called “forum rule,” which stands for the general proposition that fee awards should be based on local prevailing rates even when plaintiffs’ counsel come from outside the district in which the case is brought.
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