Mercer v. Duke University

Citation401 F.3d 199
Decision Date01 March 2005
Docket NumberNo. 04-1191.,04-1191.
PartiesHeather Sue MERCER, Plaintiff-Appellee, v. DUKE UNIVERSITY, Defendant-Appellant, and Fred Goldsmith, Defendant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Stephen M. McNabb, Fulbright & Jaworski, Washington, D.C., for Appellant.

Burton Craige, Patterson Harkavy, L.L.P., Raleigh, North Carolina, for Appellee.

John M. Simpson, Michelle C. Pardo, Caroline M. Mew, Fulbright & Jaworski, Washington, D.C., for Appellant.

Melinda Lawrence, Patterson Harkavy, L.L.P., Raleigh, North Carolina, for Appellee.

Before LUTTIG, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge TRAXLER wrote the opinion, in which Judge LUTTIG and Judge KING joined.

OPINION

TRAXLER, Circuit Judge.

Duke University appeals from the district court's order awarding Heather Sue Mercer almost $350,000 in attorney's fees in her Title IX action against Duke. Duke contends that because Mercer's recovery was ultimately limited to an award of nominal damages, she is not entitled to attorney's fees, or at least not entitled to such a large award of fees. For the reasons set forth below, we affirm the decision of the district court.

I.

Heather Sue Mercer was an all-state place kicker on her high school football team. In 1994, as a freshman at Duke University, Mercer tried out (as a walk-on) for Duke's Division I-A men's football team. She did not make the team, but she did serve as one of the team's managers, and Head Coach Fred Goldsmith allowed her to attend practices and work out with the kickers. Mercer also participated in the winter and spring conditioning programs. In April 1995, the team's seniors selected Mercer to participate in an intra-squad scrimmage game, and Mercer kicked a field goal that won the game for her squad. Shortly thereafter, Goldsmith announced that Mercer was a member of the team.

Not surprisingly, Mercer's game-winning kick and Goldsmith's announcement received an enormous amount of media attention. Mercer was the first female to be a member of a men's Division I-A football team. Duke was quite receptive to the media attention, with Duke's Sports Information Director pressuring Mercer to give interviews and appear on television, which Mercer declined to do. The outside attention, however, apparently caused Goldsmith to question his decision to make Mercer a member of the team. The district court explained the situation in its 2001 order denying Duke's post-trial motion for judgment as a matter of law:

As a result of extensive publicity and widespread interest in Mercer being the first female to make the Duke football team, Goldsmith became concerned that Mercer's presence on the team might have an adverse effect on his players and recruiting. He became more concerned as a result of the publicity that arose from an article published in a Georgia newspaper. The article made light of the fact that Duke had a female football player and caused Goldsmith to express a belated concern that Mercer's presence on the team could be more harmful than helpful.

Mercer v. Duke Univ., 181 F.Supp.2d 525, 531 (M.D.N.C.2001), vacated in part & remanded, 50 Fed.Appx. 643 (4th Cir.2002). Goldsmith's treatment of Mercer thereafter took a turn for the worse. For example, Goldsmith refused to let Mercer participate in pre-season camp and he refused to let her dress for games or sit on the sidelines with the rest of the team. He made numerous comments that were offensive to her, such as telling her to sit in the stands with her boyfriend and asking her why she was interested in football instead of beauty pageants. Goldsmith eventually cut Mercer from the team, an action he had never taken with any male player.

Mercer brought this action against Duke University, contending that Duke discriminated against her because of her sex, in violation of Title IX. See 20 U.S.C.A. § 1681(a) (West 2000) ("No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...."). The district court dismissed Mercer's claim, concluding that, by virtue of a regulation creating an exemption for single-sex contact-sport teams, Title IX did not require Duke to give women an opportunity to play on the men's football team.1 And because Duke was not required to give Mercer an opportunity to play, the district court concluded that Title IX did not prohibit Duke from changing its mind once it made Mercer a member of the team. See Mercer v. Duke Univ., 32 F.Supp.2d 836, 839-40 (M.D.N.C.1998).

Mercer appealed that decision, and this court reversed and remanded for trial. We concluded that while the contact-sport exemption would have shielded Duke from liability had it refused to allow Mercer to try out for the team, the exemption did not give Duke license to discriminate against Mercer because of her sex once Duke decided to allow her to join the team. See Mercer v. Duke Univ., 190 F.3d 643, 647-48 (4th Cir.1999) ("Mercer I").2

At trial, a jury found in favor of Mercer. The jury awarded her one dollar in compensatory damages and two million dollars in punitive damages. Because Mercer was the prevailing party, the district court awarded Mercer more than $380,000 in attorney's fees and costs.

Duke appealed, arguing, inter alia, that punitive damages were not available under Title IX. We held the appeal in abeyance pending the Supreme Court's decision in Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). In Barnes, the Supreme Court held that punitive damages are not available for private actions brought under Title VI. See id. at 189-90, 122 S.Ct. 2097. Because Title IX is interpreted consistently with Title VI, see id. at 185, 122 S.Ct. 2097, the Supreme Court's decision in Barnes compelled us to vacate Mercer's punitive damage award. However, we rejected Duke's argument that, as a matter of law, Mercer was no longer entitled to an award of attorney's fees. We concluded that the district court should determine whether, in light of Mercer's substantially more limited success, an award of attorney's fees remained appropriate. See Mercer v. Duke Univ., 50 Fed.Appx. 643, 645 (4th Cir.2002) ("Mercer II").

On remand, the district court concluded that Mercer was entitled to attorney's fees in spite of the fact that her recovery had been reduced to the nominal damage award. The district court first reduced the total amount sought by Mercer's attorneys (more than $430,000) by three percent, a figure intended to approximate the amount of time Mercer's attorneys devoted to the ultimately unsuccessful damages aspect of the case. The district court then reduced the resulting amount by twenty percent, to reflect Mercer's limited degree of success, yielding a final attorney's fee award of $349,243.96.3 This appeal followed.

II.

Congress has authorized the award of reasonable attorney's fees to prevailing parties in certain civil rights cases, including actions brought under Title IX. See 42 U.S.C.A. § 1988(b) (West 2003) ("In any action or proceeding to enforce... title IX of Public Law 92-318 ..., 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."). A district court's decision to grant or deny attorney's fee under section 1988 is reviewed for abuse of discretion. See Randall v. Prince George's County, 302 F.3d 188, 212 (4th Cir.2002).

"[A] plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). That standard is satisfied by a "judgment for damages in any amount, whether compensatory or nominal." Id. at 113, 113 S.Ct. 566. Thus, there is no doubt that the award of nominal damages suffices to make Mercer a prevailing party within the meaning of section 1988(b).

This conclusion, however, means only that Mercer is eligible for, rather than entitled to, an award of attorney's fees. Although Mercer is a prevailing party, the district court has discretion to determine what constitutes a reasonable fee, a determination that requires the court to consider the extent of the plaintiff's success. See Farrar, 506 U.S. at 114, 113 S.Ct. 566 ("Once civil rights litigation materially alters the legal relationship between the parties, the degree of the plaintiff's overall success goes to the reasonableness of a fee award...." (internal quotation marks omitted)). If the prevailing party has recovered only nominal damages, the Supreme Court has explained that "the only reasonable fee is usually no fee at all." Farrar, 506 U.S. at 115, 113 S.Ct. 566 (emphasis added); see also id. ("In some circumstances, even a plaintiff who formally `prevails' under § 1988 should receive no attorney's fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing party...." (emphasis added)).

Duke contends that, in view of Mercer's very limited degree of success, the only reasonable award is an award of no fees at all. Mercer, however, argues that fee awards are appropriate in some nominal-damage award cases even after Farrar and that the award was justified in this case. Mercer contends her case was an important one that will provide guidance to schools nationwide and that the public purpose served by her case makes the district court's fee award reasonable.

A.

Because the Court in Farrar held that plaintiffs recovering only nominal damages usually or often will not be entitled to an award of attorney's fees, it is clear that such plaintiffs will at least sometimes be entitled to a fee award. Our cases have recognized as much. See ...

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