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Nominal Damages Plus Fees: MD to Pay in Voter Registration Case

By Robyn Hagan Cain on September 01, 2011 | Last updated on March 21, 2019

The Fourth Circuit Court of Appeals ruled this week that the Maryland Transit Authority (MTA) must pay a voting rights group’s attorney’s fees.

The Association of Community Organizations for Reform Now (ACORN) and Project Vote filed suit against MTA in 2007 challenging the restrictions on ACORN’s right to register voters at MTA transportation centers, including subway and bus stops.

At the time, MTA required any individual who wished to register voters or conduct free speech activities on MTA property - regardless of proximity to the entrance or turnstiles - to obtain a permit for each day and disclose the location of the activity. The permits would only last three days.

ACORN attempted compliance with the permit requirement, but was denied permits until an MTA attorney could review the application. When ACORN finally received a permit for one of its employees, it alleged that the employee was harassed by MTA police officers. ACORN claimed that MTA informed that organization that ACORN would not receive future permits due to the allegedly-harassed employee's reaction.

ACORN and Project Vote sued, eventually winning summary judgment in August 2008. The court awarded the groups a $1 nominal judgment.

After ACORN and Project Vote were unable to reach an attorney's fees agreement with MTA, the groups filed a motion for attorney's fees. The court, relying on Farrar v. Hobby and Mercer v. Duke Univ., held that, because ACORN and Project Vote received only nominal damages, "the only reasonable fee is ... no fee at all."

In a non-binding opinion, the Fourth Circuit Court of Appeals reversed the district court's decision and remanded the case for a determination of fees.

The Fourth Circuit based its decision on Justice Sandra Day O'Connor's concurring opinion in Farrar, which set forth a three-part test to distinguish the usual nominal-damage case, which warrants no fee award, from the unusual case that does warrant an award of attorney's fees. The Fourth Circuit later adopted the test in Mercer, dubbing it the Farrar-Mercer test.

The test instructs a court to consider the degree of the plaintiff's overall success, the significance of the legal issue on which the plaintiff prevailed, and the public purpose served by the litigation. The Fourth Circuit Court of Appeals found that ACORN and Project Vote satisfied all three criteria and were eligible for attorney's fees.

Do you agree with the Fourth Circuit's decision, or do you, like the district court, think that ACORN and Project Vote failed to satisfy the overall success requirement?

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