PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
HEATHER SUE MERCER,
Plaintiff-Appellee,

v.
DUKE UNIVERSITY,
Defendant-Appellant,

No. 04-1191

and
FRED GOLDSMITH,
Defendant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CA-97-959-1)
Argued: December 3, 2004
Decided: March 1, 2005
Before LUTTIG, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge Traxler wrote the opinion, in

which Judge Luttig and Judge King joined.

COUNSEL
ARGUED: Stephen M. McNabb, FULBRIGHT & JAWORSKI,
Washington, D.C., for Appellant. Burton Craige, PATTERSON
HARKAVY, L.L.P., Raleigh, North Carolina, for Appellee. ON

MERCER v. DUKE UNIVERSITY

BRIEF: 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.

OPINION
TRAXLER, Circuit Judge:
Duke University appeals from the district courts order awarding
Heather Sue Mercer almost $350,000 in attorneys fees in her Title
IX action against Duke. Duke contends that because Mercers recovery was ultimately limited to an award of nominal damages, she is not
entitled to attorneys 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 Dukes Division I-A mens football
team. She did not make the team, but she did serve as one of the
teams 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 teams 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, Mercers game-winning kick and Goldsmiths
announcement received an enormous amount of media attention. Mercer was the first female to be a member of a mens Division I-A football team. Duke was quite receptive to the media attention, with
Dukes 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

MERCER v. DUKE UNIVERSITY

his decision to make Mercer a member of the team. The district court
explained the situation in its 2001 order denying Dukes 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 Mercers 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 Mercers 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, No. 01-1512, 2002 WL 31528244 (4th
Cir. Nov. 15, 2002). Goldsmiths 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 Mercers 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 mens football team.1 And
1

See 34 C.F.R. 106.41(b) (2004) ("[A] recipient may operate or

sponsor separate teams for members of each sex where selection for such

MERCER v. DUKE UNIVERSITY

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 attorneys 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
teams is based upon competitive skill or the activity involved is a contact
sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team
for members of the other sex, and athletic opportunities for members of
that sex have previously been limited, members of the excluded sex must
be allowed to try-out for the team offered unless the sport involved is a
contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the
purpose or major activity of which involves bodily contact." (emphasis
added).
2
Mercer originally named Duke and Goldsmith as defendants, asserting the Title IX claim against Duke and asserting various state law
claims against Duke and Goldsmith. Mercer voluntarily dismissed one of
the state law claims shortly after filing her complaint, after the issuance
of an intervening decision by a North Carolina appellate court. When the
district court dismissed the Title IX claim, it declined to exercise supplemental jurisdiction over the state law claims and dismissed them without
prejudice. Mercer apparently abandoned the state law claims at that
point, because Mercers appeal involved only the dismissal of the Title
IX claim.

MERCER v. DUKE UNIVERSITY

Supreme Courts decision in Barnes v. Gorman, 536 U.S. 181 (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.
Because Title IX is interpreted consistently with Title VI, see id. at
185, the Supreme Courts decision in Barnes compelled us to vacate
Mercers punitive damage award. However, we rejected Dukes argument that, as a matter of law, Mercer was no longer entitled to an
award of attorneys fees. We concluded that the district court should
determine whether, in light of Mercers substantially more limited
success, an award of attorneys fees remained appropriate. See Mercer v. Duke Univ., No. 01-1512, 2002 WL 31528244, at *3 (4th Cir.
Nov. 15, 2002) ("Mercer II").
On remand, the district court concluded that Mercer was entitled to
attorneys 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 Mercers attorneys (more than $430,000) by three
percent, a figure intended to approximate the amount of time Mercers attorneys devoted to the ultimately unsuccessful damages aspect
of the case. The district court then reduced the resulting amount by
twenty percent, to reflect Mercers limited degree of success, yielding
a final attorneys fee award of $349,243.96.3 This appeal followed.
II.
Congress has authorized the award of reasonable attorneys 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 attorneys fee as part of the
costs."). A district courts decision to grant or deny attorneys fee
under section 1988 is reviewed for abuse of discretion. See Randall
v. Prince Georges County, 302 F.3d 188, 212 (4th Cir. 2002).
3

This total includes an award of "fees on fees"that is, an award of

fees incurred in litigating the question of fees. See Trimper v. City of
Norfolk, 58 F.3d 68, 77 (4th Cir. 1995) ("[I]t is well settled that the time
spent defending entitlement to attorneys fees is properly compensable
under 1988. . . .").

MERCER v. DUKE UNIVERSITY

"[A] plaintiff prevails when actual relief on the merits of his

claim materially alters the legal relationship between the parties by
modifying the defendants behavior in a way that directly benefits the
plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). That standard is satisfied by a "judgment for damages in any amount, whether
compensatory or nominal." Id. at 113. 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 attorneys 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 plaintiffs success. See Farrar, 506
U.S. at 114 ("Once civil rights litigation materially alters the legal
relationship between the parties, the degree of the plaintiffs 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
(emphasis added); see also id. ("In some circumstances, even a plaintiff who formally prevails under 1988 should receive no attorneys
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 Mercers 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 nominaldamage 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 courts 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
attorneys fees, it is clear that such plaintiffs will at least sometimes

MERCER v. DUKE UNIVERSITY

be entitled to a fee award. Our cases have recognized as much. See

Clark v. Sims, 28 F.3d 420, 424-25 (4th Cir. 1994) (remanding for
district court to consider attorneys fee request by plaintiff who was
awarded only nominal damages); see also Mercer II, 2002 WL
31528244, at *3.
Although the majority opinion in Farrar provides little guidance
for courts considering whether an award of attorneys fees is warranted, Justice OConnor in a separate concurring opinion addressed
the question in more detail. According to Justice OConnor, "[w]hen
the plaintiffs success is purely technical or de minimis, no fees can
be awarded. Such a plaintiff has either failed to achieve victory at all,
or has obtained only a Pyrrhic victory for which the reasonable fee
is zero." Farrar, 506 U.S. at 117 (OConnor, J., concurring). Justice
OConnor recognized, however, that not "all nominal damages
awards are de minimis. Nominal relief does not necessarily a nominal
victory make." Id. at 121. She suggested that when determining
whether attorneys fees are warranted in a nominal-damages case,
courts should consider "the extent of relief, the significance of the
legal issue on which the plaintiff prevailed, and the public purpose
served" by the litigation. Id. at 122.
Several circuits have applied the factors identified by Justice
OConnor when considering whether a plaintiff who received nominal
damages is nonetheless entitled to an award of attorneys fees under
section 1988. See, e.g., Murray v. City of Onawa, 323 F.3d 616, 619
(8th Cir. 2003); Brandau v. Kansas, 168 F.3d 1179, 1182 (10th Cir.
1999); Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.
1996); Briggs v. Marshall, 93 F.3d 355, 361 (7th Cir. 1996). When
considering the question of attorneys fees in nominal-damage cases,
this court has likewise referred to the factors identified by Justice
OConnor, see Sheppard v. Riverview Nursing Center, Inc., 88 F.3d
1332, 1336 (4th Cir. 1996); Mercer II, 2002 WL 31528244, at *3, and
the district court in this case analyzed the question under the framework of the OConnor factors.
We believe that the factors set forth by Justice OConnor help separate the usual nominal-damage case, which warrants no fee award,
from the unusual case that does warrant an award of attorneys fees.

MERCER v. DUKE UNIVERSITY

Accordingly, we will consider the district courts decision to award

attorneys fees by way of the factors identified by Justice OConnor.
B.
The first factor identified by Justice OConnor is one that is of primary importance in all cases where a court is asked to award fees to
the prevailing partythe extent of the relief obtained by the plaintiff.
When considering the extent of the relief obtained, we must compare
the amount of the damages sought to the amount awarded. See Farrar, 506 U.S. at 114 (explaining that the "district court . . . is obligated to give primary consideration to the amount of damages
awarded as compared to the amount sought (internal quotation marks
omitted)); see also id. at 121 (OConnor, J., concurring) ("[A] substantial difference between the judgment recovered and the recovery
sought suggests that the victory is in fact purely technical."). Whether
we compare the relief obtained by Mercer to the relief she sought in
her original complaint (which asserted four causes of action against
Duke and Coach Goldsmith and sought compensatory and punitive
damages, along with declaratory and injunctive relief) or to the relief
sought in connection with the single claim that proceeded to trial (the
Title IX claim against Duke), the answer is the same: the relief
obtained by Mercer was extremely limited. She sought substantial
compensatory and punitive damages, but ultimately received only one
dollar in compensatory damages.
The district court, however, concluded that Mercer should not be
viewed as having obtained only limited relief, because she obtained
the primary relief she soughta liability finding against Duke. The
court explained that
because the primary purpose of Mercers litigation was to
establish that Duke violated her rights, her degree of success
cannot be judged solely by the nominal monetary compensation she was awarded. . . . Because Mercer achieved the primary result that she sought, the Court finds that the degree
of success she achieved was not de minimis.
J.A. 580-81. Duke contends that the district court erred when it determined the extent of the relief obtained by focusing on Mercers subjective motives in pursuing the litigation. We agree.

MERCER v. DUKE UNIVERSITY

In Texas State Teachers Association v. Garland Independent

School District, 489 U.S. 782 (1989), the Supreme Court rejected the
use of a similar subjective approach when determining whether a
plaintiff should be considered the prevailing party. In that case, the
plaintiffs prevailed on several, but not all, of the claims asserted
against the defendants. The Fifth Circuit, however, denied the plaintiffs request for attorneys fees, concluding that a plaintiff was a prevailing party under section 1988 only if "the plaintiff prevailed on the
central issue by acquiring the primary relief sought." Id. at 787 (internal quotation marks omitted). The Supreme Court rejected this "central issue" test:
By focusing on the subjective importance of an issue to the
litigants, [the central issue test] asks a question which is
almost impossible to answer. . . . This question, the answer
to which appears to depend largely on the mental state of the
parties, is wholly irrelevant to the purpose behind the fee
shifting provisions, and promises to mire district courts
entertaining fee applications in an inquiry [that has been]
described as "excruciating." . . . [T]he search for the "central" and "tangential" issues in the lawsuit, or for the "primary," as opposed to the "secondary," relief sought, much
like the search for the golden fleece, distracts the district
court from the primary purposes behind 1988 and is essentially unhelpful in defining the term "prevailing party."
Id. at 791.
Thus, the Court in Garland made it clear that the subjective
motives of the plaintiff are not relevant to determining whether the
plaintiff is a prevailing party. And contrary to Mercers suggestion,
we do not believe that Farrar requires consideration of the plaintiffs
motives to determine the extent of the relief obtained by the plaintiff.
To be sure, Farrar does require a court determining the scope of
the relief obtained to consider, to a certain degree, the purpose of the
lawsuit. See Farrar, 506 U.S. at 114 ("Where recovery of private
damages is the purpose of civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of
damages awarded as compared to the amount sought." (emphasis

10

MERCER v. DUKE UNIVERSITY

added; internal quotation marks and alteration omitted)). The reference to the "purpose" of the lawsuit, however, merely serves to distinguish an action seeking monetary relief from one seeking injunctive
or declaratory relief. That distinction was relevant to the Courts
immediately-following explanation of how to determine the extent of
the relief obtained by the plaintiff: by comparing the damages asked
for to those awarded. See id. If a case sought injunctive relief, the relevant comparison, of course, would be the scope of the injunctive
relief sought to the relief actually granted.
Thus, Farrar simply requires courts to consider the relief that was
sought by the plaintiff, not the relief that was most important to the
plaintiff. See id. at 114-15 ("[A] district court, in fixing fees, is obligated to give primary consideration to the amount of damages
awarded as compared to the amount sought. Such a comparison promotes the courts central responsibility to make the assessment of
what is a reasonable fee under the circumstances of the case. . . ."
(emphasis added; internal quotation marks omitted)); id. at 121
(OConnor, J., concurring) (noting that when determining whether to
award fees, "[t]he difference between the amount recovered and the
damages sought is not the only consideration" (emphasis added)). If
the rule were otherwise, then every plaintiff recovering only nominal
damages would claim that the only thing he was really ever interested
in was a liability finding, a claim that the defendant would dispute,
thus miring the district court in the same "excruciating" and "distract[ing]" inquiry that the Supreme Court has condemned. Garland, 489
U.S. at 791; see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)
("A request for attorneys fees should not result in a second major litigation.").
As discussed above, when the relief sought by Mercer is compared
to the relief she obtained, it is apparent that Mercer obtained only limited relief.4 The first factor identified by Justice OConnor in Farrar
thus weighs against an award of attorneys fees to Mercer.
4
Although we agree with Duke that the district court improperly
applied this factor, we do not believe that this error requires yet another
remand. Considering the district courts opinion in its entirety, it is
apparent to us that a proper analysis of the first OConnor factor would
not have affected the district courts decision to award attorneys fees to
Mercer.

MERCER v. DUKE UNIVERSITY

11

C.
According to Justice OConnor, the second factor we should consider is "the significance of the legal issue on which the plaintiff prevailed." Id. at 122 (OConnor, J., concurring). This factor is
concerned with the general legal importance of the issue on which the
plaintiff prevailed. See, e.g., Maul v. Constan, 23 F.3d 143, 145 (7th
Cir. 1994) ("[W]e understand the second Farrar factor to address the
legal import of the constitutional claim on which plaintiff prevailed."); Piper v. Oliver, 69 F.3d 875, 877 (8th Cir. 1995) (explaining that the plaintiffs "right to be free from illegal detention was a
significant one").5
We agree with the district court that the legal issue on which Mercer prevailed is an important one. Mercers case established that the
contact-sports exemption does not permit a school to discriminate
against women that the school has allowed to participate in contact
sports. Mercers case was the first to so hold, and it will serve as guidance for other schools facing the issue.
5

The Tenth Circuit, however, has stated that rather than looking to the
legal significance of the issue on which the plaintiff prevailed, the second
factor "goes beyond" the first factors focus on the actual relief obtained,
"to examine the extent to which the plaintiff succeeded on his theory of
liability." Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1231 (10th
Cir. 2001) (internal quotation marks and alterations omitted). In the
Tenth Circuits view, interpreting the second factor as focusing on the
importance of the issue would mean that there is "little difference
between the second and third OConnor factors." Id. While there may be
some overlap between the second and third factors if the second factor
refers to the importance of the legal issue, it seems to us that under the
Tenth Circuits approach, there is a significant overlap with the first
OConnor factor. A plaintiff recovering nominal damages has, by definition, established liability on at least one claim but yet recovered no real
damages. The Tenth Circuits approach seems to require courts to count
how many claims on which the plaintiff was able to establish liability,
an inquiry that is a repeat of the inquiry required by the first factor
determining the extent of the relief obtained by the plaintiff. If the Tenth
Circuits approach instead requires consideration of whether the plaintiff
established liability on his main claim, that would require an inquiry into
the subjective motives of the plaintiff, an approach that we have already
rejected.

12

MERCER v. DUKE UNIVERSITY

Duke, however, contends that, when applying this factor, we

should not focus on the legal issue resolved in Mercer I. Relying on
Hewitt v. Helms, 482 U.S. 755 (1987), Duke argues that Mercer I was
an interlocutory appellate decision and that, for purposes of attorneys
fees under section 1988, Mercer did not prevail on the issue at stake
in Mercer I. Duke contends that Mercer prevailed only because of the
jurys verdict, which was a fact-specific determination of liability that
is in no way legally significant. This argument is utterly without
merit.
In Hewitt, a plaintiff convinced the Court of Appeals that the district court erred by granting summary judgment in favor of the defendants on the plaintiffs 1983 claim. On remand, however, the district
court concluded that the defendants were entitled to qualified immunity and thus entered judgment in favor of the defendants. The
Supreme Court rejected the plaintiffs claim that the Court of
Appeals decision reversing the grant of summary judgment entitled
him to attorneys fees. The Court concluded that the plaintiff was not
a prevailing party because he "obtained no relief. . . . [H]e received
no damages award[,] [and] [n]o injunction or declaratory judgment
was entered in his favor. . . . The most that he obtained was an interlocutory ruling that his complaint should not have been dismissed. . . .
That is not the stuff of which legal victories are made." Id. at 760.
Unlike the plaintiff in Hewitt, Mercer did not win on appeal only
to lose at trial. Instead, she won on appeal and she also won at trial.
Contrary to Dukes suggestion, the decision in Mercer I was not
merely an interlocutory decision that had no bearing on Mercers victory at trial. Mercer I concluded that the facts alleged by Mercer
would, if believed by the jury, amount to a violation of Title IX, and
Mercer I thus provided the framework within which the jury would
operate. The jurys verdict, of course, does represent a factual determination that Duke was legally responsible for violating Mercers
rights under Title IX. But the facts as found by the jury gave rise to
a first-of-its-kind liability determination. Thus, contrary to Dukes
argument, Mercer succeeded on a significant legal issue. Accordingly,
the second of Justice OConnors factors weighs in favor of an award
of fees to Mercer.

MERCER v. DUKE UNIVERSITY

13

D.
The final factor we must consider is whether the litigation served
a public purpose, as opposed to simply vindicating the plaintiffs individual rights. See Farrar, 506 U.S. at 121-22 (OConnor, J., concurring) (explaining that a plaintiffs "success might be considered
material if it also accomplished some public goal other than occupying the time and energy of counsel, court, and client"); cf. Carter v.
Burch, 34 F.3d 257, 266 (4th Cir. 1994) (affirming denial of attorneys fee to plaintiff who received only nominal damages, in part
because the case "involved no broad civil rights issues").
Title IX prohibits sex-based discrimination by educational institutions receiving federal funds, a prohibition that extends to "all programmatic aspects of educational institutions," including athletics.
Cohen v. Brown Univ., 991 F.2d 888, 894 (1st Cir. 1993). There can
be no doubt that Title IXs goal of reducing gender-based discrimination in education is an important public goal. And as we have already
explained, Mercers case was the first to establish that a school cannot
rely on the contact-sport exemption to excuse discrimination against
a woman the school has permitted to join an all-male contact-sport
team. Thus, Mercers case was important in that it marked a milestone
in the development of the law under Title IX. The case likewise
serves a significant public purpose, by furthering Title IXs goal of
eliminating discrimination in educational institutions.
To be sure, Mercer did not seek declaratory or injunctive relief that
would have extended beyond her own case. That fact, however, while
relevant, cannot be dispositive of the question of whether the legal
issue in Mercers case was a significant one or whether the case
served an important public purpose. In our legal system, with its reliance on stare decisis and respect for precedent, a case involving the
claim of a single individual, without any request for wide-ranging
declaratory or injunctive relief, can have a profound influence on the
development of the law and on society. Because Mercers case was
the first of its kind, Mercer I and the jurys verdict will serve as guidance to other schools facing similar issues. Mercers case, therefore,
serves much more than her own private interests, notwithstanding the
fact that the she did not seek or obtain broad equitable relief that
would have reached beyond her individual claim.

14

MERCER v. DUKE UNIVERSITY

Duke, however, insists that Mercers case is not particularly important, because it is unlikely that many other women will want to play
football. Duke also contends that, in any event, schools will be less
likely after Mercers case to allow women to play on all-male teams,
because schools now "understand that, by permitting women to participate on such teams, they could unnecessarily open themselves to
lawsuits and administrative sanctions." Brief of Appellant at 35. Duke
thus seems to suggest that Mercers action in fact hindered the public
interest, by closing off any opportunity women might otherwise have
had to participate in contact sports.
It may well be that to avoid the requirement that they treat women
fairly once they are on a team, some schools and coaches will decline
to allow women to even try out for contact sports. While that would
be an unfortunate consequence of Mercers lawsuit, that possibility
does not change the fact that Mercers lawsuit broke new ground, nor
does it diminish the significance of the case.
Moreover, Dukes doomsday predictions about the participation of
women in football and other male-dominated sports do not seem to
be panning out. A little research reveals that, even after the jurys verdict in Mercers case, others have continued to hike along the trail
that Mercer blazed. For example, in 2001, Ashley Martin, a kicker for
Jacksonville State University, became the first woman to participate
and score in a Division I-AA football game, kicking three extra
points. And in 2003, Katie Hnida, a kicker for the University of New
Mexico, became the first woman to score in a Division I-A football
game, kicking two extra points. (Hnida transferred to New Mexico
from the University of Colorado, where she made the football team
as a walk-on kicker. She suited up for Colorado, but never played in
a game.) See Woman Kicker Accounts for First, L.A. Times, Aug. 31,
2003, available at 2003 WL 2431227. It is also worth pointing out
that in 2003, nearly 3,000 girls in high school (where Title IX is also
applicable) played football, and another 10,000 participated in other
traditionally male sports like ice hockey and wrestling. See J.A. 487,
516-17. Dukes attempt to minimize the significance of Mercers case
thus falls flat.
Although Mercer ultimately obtained only limited success on her
claim against Duke, the effect of the appellate decisions and jury ver-

MERCER v. DUKE UNIVERSITY

15

dict in her case reaches well beyond Mercer herself. And because
Mercers case served a significant public purpose, we agree with the
district court that even though Mercer recovered only nominal damages, her victory is not de minimis or purely technical. Cf. Farrar,
506 U.S. at 118 (OConnor, J., concurring) ("When the plaintiffs success is purely technical or de minimis, no fees can be awarded.").
Accordingly, we conclude that the district court did not abuse its discretion by determining that Mercer was entitled to an award of attorneys fees. See Pino v. Locascio, 101 F.3d 235, 239 (2d Cir. 1996)
(explaining that attorneys fees will be warranted in a nominaldamages case if the "lawsuit create[s] a new rule of liability that serve[s] a significant public purpose"); Sheppard, 88 F.3d at 1336
("Farrars concern was not only with whether the extent of recovery
accords with the amount of attorneys fees. The decision suggested a
more general proportionality consideration as well: whether the public
purposes served by resolving the dispute justifies the recovery of
fees.").
III.
In addition to challenging Mercers general entitlement to attorneys fees, Duke also contends that the amount fixed by the district
court is unreasonable. Like the question of Mercers entitlement to
fees, the question of reasonableness of the amount awarded is an issue
entrusted to the sound discretion of the district court. See, e.g., Carroll v. Wolpoff & Abramson, 53 F.3d 626, 628 (4th Cir. 1995) ("It is
for the district court in the first instance to calculate an appropriate
award of attorneys fees. On appeal, this court has a duty to affirm an
attorneys fee award which falls within the district courts broad discretion." (citation, internal quotation marks and alteration omitted)).
When calculating the fee award after remand, the district court
started by looking to the fee calculations made in its 2001 post-trial
opinion. The district court added to those calculations the number of
hours that had been expended since the time of that opinion and multiplied that figure by a reasonable hourly rate to reach the "lodestar"
amount. The district court reduced the lodestar amount by three percent, the amount of time that Mercers attorneys devoted to the issue
of damages, and then reduced that amount by another twenty percent,

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MERCER v. DUKE UNIVERSITY

to reflect Mercers limited success by virtue of her failure to recover

anything more than nominal damages.
Duke does not quarrel with the manner in which the district court
arrived at the amount of fees to be awarded. Indeed, the district
courts approach to the fee calculation was entirely consistent with the
procedures set forth by the Supreme Court and this court. See Hensley, 461 U.S. at 436-37; Johnson v. City of Aiken, 278 F.3d 333, 337
(4th Cir. 2002). Moreover, Duke stipulated below that both the hours
claimed by Mercer and the hourly rate applied by the district court
were reasonable, and Duke did not dispute Mercers claim that only
three percent of the attorneys time was attributable to the damages
issue.
Nonetheless, Duke contends on appeal that the district court erred
by awarding Mercer so much of her requested attorneys fees. Duke,
however, offers no explanation as to how or why the district court
erred, except to state rather cryptically that "[l]imited success should
only beget limited fees." Brief of Appellant at 39. Instead, Duke simply re-asserts many of the arguments it made in support of its contention that Mercer was not entitled to any fees.
Duke supports its nebulous argument with a string of citations to
civil rights cases where the plaintiffs received only nominal damages.
In most of the cases cited by Duke, the courts refused to award any
fees to the plaintiffs; in the few cases where a fee award was made,
it was in an amount substantially lower than the amount at issue in
this case. Given Dukes failure to make any specific argument about
the applicability of any of the cases it cites, Duke thus seems to
believe that the mere existence of cases awarding no fees or low fees
establishes the error of the district courts ways in this case. We disagree.
The no-fees cases cited by Duke are typical civil rights cases, in
that they involved nothing more than a moral vindication of the plaintiffs rights, without establishing any new rule or having any farreaching public effect. See Pino, 101 F.3d at 239 (observing that
"[t]he vast majority of civil rights litigation does not result in groundbreaking conclusions of law, and therefore, will only be appropriate
candidates for fee awards if a plaintiff recovers some significant mea-

MERCER v. DUKE UNIVERSITY

17

sure of damages or other meaningful relief"). Accordingly, the nofees cases are just thatcases where a court has concluded that, under
the circumstances of that case, the only reasonable fee award is no fee
at all. See, e.g., Pouillon v. Little, 326 F.3d 713, 717 (6th Cir. 2003)
("Pouillon has not demonstrated that his case is distinguishable from
the usual case where a prevailing civil rights plaintiff is not entitled
to attorneys fees when all that he has won is a technical vindication
of rights in the form of nominal damages."); Johnson, 278 F.3d at 338
("As in Farrar, [the plaintiffs] victory against [a single defendant]
did little more than provide them the moral satisfaction of knowing
that a federal court concluded that their rights had been violated."
(internal quotation marks and alteration omitted)); Briggs, 93 F.3d at
361 (affirming denial of attorneys fees in case where "plaintiffs
victory served little or no public purpose"); Carter, 34 F.3d at 266
(affirming denial of attorneys fee to plaintiff who received only nominal damages, in part because the case "involved no broad civil rights
issues"). In this case, however, the district court concluded, and we
agree, that Mercers is one of the rare nominal-damage cases warranting an award of attorneys fees. Dukes no-fees cases thus shed no
light on the question of whether the fees awarded in this case are reasonable.
The cases cited by Duke where fees were awarded, but in lower
amounts, are similarly unhelpful. Duke claims that there are only six
reported cases where attorneys fees have been awarded in nominaldamage civil rights cases, and in none of those cases did the fee award
even approach the amount awarded by the district court in this case.6
Preliminarily, we note that lower fees were awarded in the cases cited
by Duke largely because the fees requested were substantially lower
than those requested in this case. From that we can readily infer that
the cases were not nearly as long- or hard-fought as this case. In addition, the district courts in these cases reduced the requested fees (to
reflect the plaintiffs limited success) by amounts ranging from ten
percent to more than sixty percent, and those decisions were affirmed
on appeal. See Murray, 323 F.3d at 619-20 (court awarded 50% of the
6

Since Dukes brief was filed, the First Circuit has affirmed an award
by the district court of two-thirds of the requested attorneys fees to
plaintiffs who recovered only nominal damages. See Diaz-Rivera v.
Rivera-Rodriguez, 377 F.3d 119, 124-26 (1st Cir. 2004).

18

MERCER v. DUKE UNIVERSITY

approximately $15,000 in fees requested); Brandau, 168 F.3d at 1183,

affirming No. 96-2414, 1997 WL 613333, at *3 (D. Kan. 1997)
(reducing requested fees by 10% and awarding approximately
$40,000 in fees); Muhammad v. Lockhart, 104 F.3d 1069, 1070 (8th
Cir. 1997) (counsel sought $6,000 in fees; court awarded $4,500);
Piper, 69 F.3d at 876-77 (counsel sought approximately $24,000 in
fees and costs; court awarded $8,250); Wilcox v. City of Reno, 42 F.3d
550, 555 n.5 (9th Cir. 1994) (court awarded $66,000 of the more than
$110,000 in fees requested); see also Jones v. Lockhart, 29 F.3d 422,
423-24 (8th Cir. 1994) (counsel requested $31,000 in fees; district
court awarded $25,000, which appeals court reduced to $10,000 after
concluding that the plaintiff prevailed on only one claim, not two
claims as the district court had concluded). Rather than supporting
Dukes vague claim that Mercers fee award was too much, these
cases reinforce the principle that the determination of a reasonable fee
is an intensively fact-bound matter for the trial court to determine in
the sound exercise of its discretion. We simply cannot discern from
these cases any over-arching principle that would require us to set
aside the district courts carefully calculated fee award.
We are well aware that the fees awarded by the district court are
quite substantial. But we have agreed with the district court that Mercers victory was not de minimis or purely technical under Farrar, so
that Mercer is entitled to an award of fees that is reasonable under the
circumstances. Given the nature of this litigation, which was hard
fought by both sides, has been on-going for more than seven years,
and is now in the middle of its third appeal, we cannot conclude
merely from the size of the fee award that the award is unreasonable.
And as we have explained, Duke gives us no other basis upon which
we could conclude that the award is unreasonable. As noted above,
the district court scrupulously followed the framework for determining a reasonable fee award, and Duke does not contend otherwise.
Duke does not argue on appeal that the hours or the hourly rate used
by the district court are unreasonable, nor does Duke contend that
more than three percent of the time of Mercers attorneys was dedicated to the damages issue. Duke does not even suggest what would
be a more appropriate percentage to reduce the award in reflection of
Mercers limited success. Duke, although unable to point to an error
by the district court, simply insists that the fees awarded are unreasonable.

MERCER v. DUKE UNIVERSITY

19

We have made it clear that the determination of a reasonable attorneys fee award is a decision for the district court to make, and the
district court has broad discretion in that regard:
Had we been the district court in this case, we may well
have exercised our discretion differently. The fixing of
attorney fees, however, is primarily the task of the district
court. We have promoted uniform reasonableness in fixing
attorney fees by identifying general standards to guide the
decisionmaker. . . . Beyond providing such standards, however, the appellate courts role in achieving uniformity on a
case-by-case basis is limited. It is important that the district
court remain primarily responsible for resolving fee disputes, because it is in the better position to evaluate the
quality and value of the attorneys efforts. The very discretion basic to the trial courts duties creates results that inevitably differ in degree. An appellate court, however, cannot
quarrel with varying results among independently-minded
trial judges that merely reflect differences in their individual
judgments. We gauge only whether a trial court abuses its
proper discretion.
Ballard v. Schweiker, 724 F.2d 1094, 1098 (4th Cir. 1984); see also
Hensley, 461 U.S. at 437 ("[T]he district court has discretion in determining the amount of a fee award. This is appropriate in view of the
district courts superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are
factual matters."); Plyler v. Evatt, 902 F.2d 273, 277-78 (4th Cir.
1990) ("Our review of the district courts award is sharply circumscribed; we have recognized that because a district court has close and
intimate knowledge of the efforts expended and the value of the services rendered, the fee award must not be overturned unless it is
clearly wrong." (internal quotation marks and alteration omitted)).
Although we might have arrived at a different figure, we have no
basis upon which we can conclude that the district court abused its
discretion when calculating the fees to which Mercer was entitled
under section 1988. See Carroll, 53 F.3d at 631 ("Discretion allows
district courts latitude in determining fee awardseven those that an
appellate court might initially have set in a different amount.").

20

MERCER v. DUKE UNIVERSITY

Accordingly, we are constrained to affirm the district courts award

of attorneys fees to Mercer.
IV.
Mercers claim was a novel one that established a new rule of law
with regard to liability under Title IX. Because Mercers litigation
thus served an important public purpose, we conclude that the district
court did not abuse its discretion by concluding that Mercers victory
entitled her to an award of attorneys fees even though she ultimately
recovered only nominal damages. And because Duke has identified
no error in the district courts calculation of the amount of fees to
which Mercer was entitled, we likewise conclude that the district
court did not abuse its discretion when fixing the fee amount. Accordingly, the decision of the district court is hereby affirmed.7
AFFIRMED
7

Duke also challenges the fee award by claiming that the district court
erred by refusing to strike Mercers fee petition, which Duke contends
was filed one week outside the time period set by the Middle District of
North Carolinas Local Rule 54.2. The rule requires fee petitions to be
filed within sixty days after the "entry of final judgment." Mercer filed
her petition more than 60 days after the date we issued our opinion in
Mercer II, but fewer than 60 days after the issuance of the Mercer II
mandate. We find no error in the district courts refusal to strike the petition. See Hicks v. Southern Maryland Health Sys. Agency, 805 F.2d
1165, 1167 (4th Cir. 1986) (suggesting possibility that filing time under
a local rule could be construed to run from date of the appellate court
mandate); United States Fid. & Guar. Co. v. Lawrenson, 334 F.2d 464,
467 (4th Cir. 1964) (explaining that the district court is the "best judge
of its own rules"); Fed. R. App. P. 41, advisory committees notes to
1988 Amendments ("A court of appeals judgment or order is not final
until issuance of the mandate; at that time the parties obligations
become fixed.").