Paul JENSEN, Plaintiff-Appellant, v. CITY OF SAN JOSE and Harry Stangel, individually and as a police officer, San Jose, Calif.; City of San Jose, Calif.; Does I through C, inclusive, Defendants-Appellees, 806 F.2d 899

FARRIS, Circuit Judge: FACTS Alleging that he had been arrested and imprisoned without probable cause, Paul Jensen sued the City of San Jose and two City police officers under 42 U.S.C. § 1983. Jensen’s suit survived a motion to dismiss, but the district court granted the City

summary judgment. The case against one police officer, Harry Stangel, went to trial. The jury found in favor of Stangel. Judgment was entered on the verdict. Jensen did not appeal. Defendants Stangel and the City then filed a motion for attorney’s fees under 42 U.S.C. § 1988. The trial court granted fees of $10,934, finding that Jensen’s suit had been “frivolous, unreasonable, and without foundation.” Jensen appealed the award of fees, and we reversed, holding that Jensen’s suit had not been frivolous, unreasonable, or without merit. Jensen v. Stangel, 762 F.2d 815 (9th Cir.1985). Jensen then sought attorney’s fees under

section 1988 for his successful appeal of the fee award. A three-judge panel of this court granted Jensen fees of $12,835. Jensen v. Stangel, 790 F.2d 721 (9th Cir.1986), (Stephens, J., dissenting). The court, sua sponte, ordered rehearing en banc. Jensen v. Stangel, 795 F.2d 888 (9th Cir.1986). The opinion of the panel is withdrawn. We deny the motion for attorney’s fees. ANALYSIS

Section 1988 provides that in actions brought “to enforce a provision of [42 U.S.C. § 1983], the court in its discretion may allow the prevailing party, other than the United States, a reasonable attorney’s fee.” 42 U.S.C. § 1988 (1982). A “prevailing party” under

section 1988 means “a party [who] has prevailed on the merits of at least some of his claims.” Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980) (per curiam). Because Jensen did not succeed on the merits of any of his underlying civil rights claims, he is not a prevailing party under

section

Section 1988 is among the few statutory exceptions to the general American rule that litigants bear their own attorney’s fees. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Jensen argues that Congress’s purpose in enacting

section 1988 was so broad as to support a grant of attorney's fees to plaintiffs who merely allege and do not prove violations of civil rights laws. As construed by the Supreme Court and our own decisions, however, the term “prevailing party” in

section 1988 cannot be stretched to include plaintiff Jensen. Adopting the language of a First Circuit opinion, the Supreme Court has said that “ ‘plaintiffs may be considered “prevailing parties” ... if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Hel-gemoe, 581 F.2d 275, 278-79 (1st Cir.1978)).

The benefit Jensen says he received on appeal was “relief from the opprobrium of a judicial ruling indicating that he had no legal grounds to pursue his claim against defendants [and from] the harsh penalty of a[n] attorney fee award against him.” These are not benefits typically envisioned by a plaintiff when first filing suit. More importantly, however, the “benefits” that Jensen achieved on appeal were not from a civil rights action. The Supreme Court has held that the benefit a party achieves must come from success on the merits of a civil rights claim, not from success on procedural or collateral issues.

Hanrahan v. Hampton, 446 U.S. 754, 759, 100 S.Ct. 1987, 1990, 64 L.Ed.2d 670 (1980) (per curiam). We find the rationale of Hanrahan controlling. In Hanrahan, the plaintiffs claimed attorney’s fees after a court of appeals reversed a trial court’s ruling that had limited discovery. This favorable ruling ensured that plaintiffs would receive a trial on the merits.

The Supreme Court held that such “procedural or evidentiary rulings ... were themselves not matters on which a party could ‘prevail’ ... under § 1988.” Hanrahan, 446 U.S. at 759, 100 S.Ct. at 1990. “[0]nly when a party has prevailed on the merits of at least some of his claims ... has there been a determination of the ‘substantial rights of the parties,’ which Congress determined was a necessary foundation for” granting attorney’s fees under

section 1988. Han-rahan, 446 U.S. at 758, 100 S.Ct. at 1989. Because the Court of Appeals found that his suit was not frivolous, Jensen argues that his “legal action was vindicated on appeal.” Jensen’s appeal vindicated not his rights, but his lawsuit.

Section 1988 makes fees available for the enforcement of civil rights. The principles of Hanrahan derive from the congressional policies behind

section 1988. As the Supreme Court recognized in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), plaintiffs who succeed on the merits advance Congress’s strong purpose of enforcing civil rights laws. Id. at 418, 98 S.Ct. at 698. Moreover, “when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law. ... ‘[T]hese policy considerations which support the award of fees to a prevailing plaintiff are not present in the case of a prevailing defendant.’ ” Id. at 418-19, 98 S.Ct. at 699 (quoting EEOC v.

Christiansburg Garment Co., 550 F.2d 949, 951 (4th Cir.1977)). The policy considerations that support the award of fees to a plaintiff who wins on the merits are also absent when a plaintiff loses on the merits. Because Jensen did not win on the merits, he cannot be said to have advanced Congress’s intent to enforce the civil rights laws.

Moreover, the defendants from whom Jensen seeks fees are not violators of federal law. “[L]iability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against ... § 1988 does not authorize a fee award against that defendant.” Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). The statutory scheme for civil rights enforcement deliberately leaves a middle ground where failing claims — non-frivolous and made in good faith — are not entitled to attorney’s fees.

Because Jensen’s claim was not frivolous, he should face no disincentive for having raised it. Because his claim was unsuccessful, however, he should also receive no special incentive. This fulfills Congress’s intent “to promote the vigorous enforcement” of civil rights laws without creating “an incentive to the bringing of claims that have little chance of success.” Christiansburg, 434 U.S. at 422, 98 S.Ct. at 701. Jensen’s appeal stands in the middle ground of this statutory scheme where, as in most American litigation, both plaintiff and defendant bear their own attorney’s fees.

Our decisions have followed closely the rationale of Christiansburg and Hanrahan. In a case, like Hanrahan, involving an interlocutory victory, we held that a plaintiff was not a prevailing party where he won only the right to a new trial. United States v. 2.61 Acres of Land, 791 F.2d 666 (9th Cir.1985) (per curiam); see also Escobar Ruiz v. I.N.S., 787 F.2d 1294, 1297-98 (9th Cir.1986) (denying attorney’s fees on appeal where plaintiff won a remand to an administrative agency with no favorable determination on the merits of his underlying action); NLRB v.

Doral Building Services, Inc., 680 F.2d 647 (9th Cir.1982) (denying attorney’s fees on appeal where party won a remand to an administrative agency and a favorable evidentiary ruling but no determination on the merits). Where the interlocutory “victory” was an erroneously granted injunction, we denied attorney’s fees. Ward v. County of San Diego, 791 F.2d 1329, 1334 (9th Cir.1986). We have upheld the award of attorney’s fees under

section 1988 only where a plaintiff has prevailed on the merits of one or more civil rights claims. See Planned Parenthood v. Arizona, 789 F.2d 1348 (9th Cir.1986) (granting attorney’s fees on appeal where plaintiff won on the merits both in the district court and on appeal). The benefit a plaintiff achieves need not be a final verdict after full trial, but that benefit must still be related to the civil rights claim. See Mantolete v.

Bolger, 791 F.2d 784 (9th Cir.1986) (awarding fees on appeal where remand to district court did not decide merits of plaintiff’s case but did benefit plaintiff and other handicapped persons by imposing stricter standards for determining qualifications of handicapped job applicants); Fitzharris v. Wolff, 702 F.2d 836 (9th Cir.1983) (upholding trial court’s award of fees where plaintiff's suit won an order preventing his transfer to a state prison even though the case was ultimately mooted by plaintiffs parole); American Constitutional Party v.

Munro, 650 F.2d 184 (9th Cir.1981) (affirming the denial of attorney’s fees where plaintiffs had not shown “some sort of clear, causal relationship between the litigation brought and the practical outcome realized.” Id. at 188 (emphasis in original)). Especially relevant to Jensen’s case are cases where we awarded attorney’s fees on appeals involving challenges to awards of attorney’s fees. See In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir.1985); Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir.1981). In both cases the plaintiffs had won on the merits in the trial courts.

Our holding here is consistent with the Seventh Circuit’s decision in Ekanem v. Health and Hospital Corp., 778 F.2d 1254 (7th Cir.1985). Ekanem dealt with the same issue we face here. In that case, a plaintiff who lost on the merits in the trial court successfully appealed an award of attorney’s fees to the defendant. The Seventh Circuit held that “because ... [the plaintiff’s] claim failed both at trial and on appeal, he cannot be characterized as a ‘prevailing party.’ ” Ekanem, 778 F.2d at 1258.

The ruling that overturned the defendant’s fee award was not “the benefit the parties sought in bringing suit.” Id. (citing Hanrahan). Jensen seeks to distinguish Ekanem because the plaintiff’s claim there had been dismissed at the outset for failure to state a cause of action. It is a distinction without a difference. A “prevailing party” must prevail on some aspect of a civil rights claim before

section 1988 entitles that party to attorney’s fees. The motion for attorney’s fees is DENIED.