Steven Lefemine v. Dan Wideman

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1629

STEVEN LEFEMINE, d/b/a Columbia Christians for Life,

Plaintiff - Appellant,

v.

DAN WIDEMAN, individually and in his official capacity; MIKE

FREDERICK, individually and in his official capacity; LONNIE

SMITH, individually and in his official capacity; BRANDON

STRICKLAND, individually and in his official capacity;

SHERIFF TONY DAVIS, in his official capacity,

Defendants – Appellees,

and

GREENWOOD COUNTY SHERIFF'S OFFICE,

Defendant.

Appeal from the United States District Court for the District of

South Carolina, at Anderson. Henry M. Herlong, Jr., Senior

District Judge. (8:08-cv-03638-HMH)

Argued: March 19, 2014 Decided: July 11, 2014

Before DUNCAN, WYNN, and DIAZ, Circuit Judges.

Reversed and remanded by published opinion. Judge Wynn wrote

the opinion, in which Judge Duncan and Judge Diaz joined.

ARGUED: Steven W. Fitschen, NATIONAL LEGAL FOUNDATION, Virginia

Beach, Virginia, for Appellant. Andrew Lindemann, DAVIDSON &

LINDEMANN, P.A., Columbia, South Carolina, for Appellees. ON

BRIEF: Robert D. Garfield, DAVIDSON & LINDEMANN, P.A., Columbia,

South Carolina, for Appellee Mike Frederick. Russell W. Harter,

Jr., CHAPMAN, HARTER & HARTER, P.A., Greenville, South Carolina,

for Appellees Dan Wideman, Lonnie Smith, Brandon Strickland, and

Tony Davis.

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WYNN, Circuit Judge:

Plaintiffs who prevail in suits to vindicate civil rights

are entitled to attorneys’ fees unless special circumstances

make a fee award unjust.

Here, Plaintiff Steven C. Lefemine, leader of the Columbia

Christians for Life, successfully sued various Greenwood County

Sheriff’s Office officials for First Amendment violations. But

the district court deemed “(1) the Defendants’ qualified

immunity, (2) the absence of a policy or custom of

discrimination against abortion protestors by the Greenwood

County Sheriff’s Office, and (3) the limited nature of

[Lefemine’s] injunctive relief” to be special circumstances that

made the award of attorneys’ fees to Lefemine unjust. 1 We,

however, hold that the relief Lefemine obtained was notably

broader than the district court suggested and that the other two

circumstances are not “special” and do not render a Section 1988

fee award unjust. Accordingly, we reverse.

I.

In November 2005, Lefemine and other members of his group

Columbia Christians for Life demonstrated on a public sidewalk

at the busiest intersection in Greenwood County, South Carolina.

1

Lefemine v. Wideman, No. 8:08-3638-HMH, 2013 WL 1499152,

at *4 (D.S.C. Apr. 9, 2013).

3

Lefemine v. Wideman, No. 8:08-3638-HMH, 2013 WL 1499152, at *1

(D.S.C. Apr. 9, 2013). They held large signs with graphic

images of aborted fetuses hoping to “shock the consciences of

those who [saw] the signs” and thereby convey Columbia

Christians for Life’s anti-abortion message. Lefemine v.

Wideman, 672 F.3d 292, 296 (4th Cir.), vacated 133 S. Ct. 9

(2012).

Passers-by who saw the signs complained to the Greenwood

County Sheriff’s Office. For example, a mother who drove by the

signs with her five-year-old son reported to the Sheriff’s

Office that her son “was ‘screaming, crying’ after seeing the

signs.” Lefemine, 672 F.3d at 296.

In response, Lieutenant Randy Miles informed the Columbia

Christians for Life protestors that the Sheriff’s Office had

received “complaints about the graphic photographs” and that

“this was causing a disturbance in the traffic flow at th[e]

intersections.” Id. (quotation marks omitted). At the

direction of Chief Deputy Mike Frederick, Major Lonnie Smith

instructed Lefemine to take the signs down. Major Smith

explained that he would have “no other choice” but to ticket

Lefemine for breach of the peace if the protestors continued to

display the signs. Lefemine, 2013 WL 1499152, at *2. When

Lefemine asserted that this demand violated the First Amendment,

Major Smith responded: “You do not have a right to be offensive

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to other people in that manner.” Id. Ultimately, the

protestors packed up the signs and left.

The following year, an attorney for the National Legal

Foundation sent a letter on behalf of Columbia Christians for

Life to Sheriff Dan Wideman. The letter informed Sheriff

Wideman that “volunteers will be returning to the Greenwood area

again in the near future to exercise their First Amendment

freedoms by highlighting the national tragedy of abortion.”

J.A. 219. The letter asserted that Major Smith’s actions the

previous year “constituted content-based discrimination” and “a

clear violation of its members’ First Amendment rights.” Id.

Finally, the letter warned that “any further interference with

[Columbia Christians for Life’s] message by you or your officers

will leave us no choice but to pursue all available legal

remedies without further notice.” Id.

Chief Deputy Frederick responded on behalf of the Sheriff’s

Office. He stated that the Office’s actions the previous year

“were absolutely content-neutral, in that [Major Smith] was

enforcing existing roadway safety, public decency, and

maintenance of order statutes in order to protect the motoring

public from illegal and unwarranted distraction.” J.A. 225.

Chief Deputy Frederick declared that, faced with the same

circumstances again, the Sheriff’s Office would respond “in

exactly the same manner: order the person(s) to stop or face

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criminal sanctions . . . .” Id. Yet, despite the threat of

“criminal sanctions[,]” Lefemine and Columbia Christians for

Life returned to the same area in November 2006 and again in

2007—and those protests took place without incident.

In October 2008, Lefemine filed a suit alleging First

Amendment violations and seeking a declaratory judgment, a

permanent injunction, damages, and attorneys’ fees. Following a

hearing on the parties’ cross-motions for summary judgment, the

district court held that the Officers had violated Lefemine’s

First Amendment rights and enjoined the Officers “from engaging

in content-based restrictions on [Lefemine’s] display of graphic

signs without narrowly tailoring [the] restriction to serve a

compelling state interest.” Lefemine v. Davis, 732 F. Supp. 2d

614, 627 (D.S.C. 2010).

Nevertheless, the district court held that Lefemine could

not recover damages. It concluded that the Officers were

entitled to qualified immunity because the unconstitutionality

of their conduct had not previously been clearly established.

The court further held that Lefemine failed to establish that

the Sheriff’s Office had a custom or policy of infringing on

citizens’ First Amendment rights. Finally, the district court

refused to award Lefemine attorneys’ fees.

On appeal, this Court affirmed on all issues. Lefemine

sought and was granted certiorari by the United States Supreme

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Court, which ultimately rebuffed our holding that Lefemine did

not qualify as a “prevailing party” under Section 1988 and thus

was not entitled to attorneys’ fees. The Supreme Court held

that “the injunction ordered the defendant officials to change

their behavior in a way that directly benefited the plaintiff,”

thereby making him a “prevailing party.” Lefemine v. Wideman,

133 S. Ct. 9, 10 (2012). However, because “[n]either of the

courts below addressed whether any special circumstances

exist[ed] in this case” making a fee award unjust, id. at 12,

the Supreme Court remanded to us, and we, in turn, remanded to

the district court to award fees unless the court determined by

express findings that special circumstances rendered such an

award unjust.

On remand, the district court found three special

circumstances that made an attorneys’ fees award to Lefemine

unjust: “(1) the Defendants’ qualified immunity, (2) the absence

of a policy or custom of discrimination against abortion

protestors by the Greenwood County Sheriff’s office, and (3) the

limited nature of the injunctive relief.” Lefemine, 2013 WL

1499152, at *4. With this appeal, we now review the district

court’s ruling denying Lefemine his attorneys’ fees under the

abuse of discretion standard. Mercer v. Duke Univ., 401 F.3d

199, 203 (4th Cir. 2005) (“A district court’s decision to grant

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or deny attorney’s fee[s] under [S]ection 1988 is reviewed for

abuse of discretion.”).

II.

A.

The Civil Rights Attorney’s Fees Awards Act of 1976

authorizes the award of “a reasonable attorney’s fee” to “the

prevailing party” in certain civil rights actions, including

suits brought under Section 1983. 42 U.S.C. § 1988(b). “The

purpose of [Section] 1988 is to ensure effective access to the

judicial process” for persons with civil rights grievances.

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quotation marks

and citation omitted).

“Congress enacted [Section] 1988 specifically because it

found that the private market for legal services failed to

provide many victims of civil rights violations with effective

access to the judicial process.” City of Riverside v. Rivera,

477 U.S. 561, 576 (1986) (citations omitted). Congress

attributed this market failure in part to the fact that “[t]hese

victims ordinarily cannot afford to purchase legal services at

the rates set by the private market.” Id. (citations omitted).

Crucially for this case, Congress also attributed the need

for Section 1988 to public official immunities that severely

limit money damages even in the face of success: “[W]hile

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damages are theoretically available under the statutes covered

by [Section 1988], . . . in some cases, immunity doctrines and

special defenses, available only to public officials, preclude

or severely limit the damage remedy.” Id. at 577 (quotation

marks, citation, and emphasis omitted). Accordingly, “awarding

counsel fees to prevailing plaintiffs in such litigation is

particularly important and necessary if [f]ederal civil and

constitutional rights are to be adequately protected.’ House

Report, at 9.” Id. (quotation marks and citation omitted). See

also Pulliam v. Allen, 466 U.S. 522, 527 (1984) (noting that

“the legislative history of [Section] 1988 clearly indicates

that Congress intended to provide for attorney’s fees in cases

where relief properly is granted against officials who are

immune from damages awards” and noting that “awarding counsel

fees to prevailing plaintiffs in such litigation is particularly

important and necessary if [f]ederal civil and constitutional

rights are to be adequately protected”).

In light of Section 1988’s language and purpose, a

prevailing plaintiff “should ordinarily recover an attorney’s

fee unless special circumstances would render such an award

unjust.” Hensley, 461 U.S. at 429 (citations and quotation

marks omitted). “Courts have universally recognized that [the]

special circumstances exception is very narrowly limited.” Doe

v. Bd. of Educ. of Baltimore Cnty., 165 F.3d 260, 264 (4th Cir.

9

1998) (quotation marks and citation omitted). Indeed, “[o]nly

on rare occasions does a case present such circumstances . . .

.” Id. See also, e.g., DeJesus Nazario v. Morris Rodriguez,

554 F.3d 196, 200 (1st Cir. 2009) (stating that the special

circumstances justifying denial of attorneys’ fees are “few and

far between”).

For example, the Supreme Court recognized a special

circumstance justifying the denial of attorneys’ fees to a pro

se plaintiff who was an attorney in Kay v. Ehrler, 499 U.S. 432

(1991). A fee award would not further “the overriding statutory

concern . . . in obtaining independent counsel for victims of

civil rights violations.” Id. at 437. The Supreme Court

concluded that “[t]he statutory policy of furthering the

successful prosecution of meritorious claims is better served by

a rule that creates an incentive to retain counsel . . . .” Id.

at 438.

Similarly, in Chastang v. Flynn & Emrich Co. we recognized

a rare special circumstance justifying the denial of attorneys’

fees under Section 1988 where the plaintiffs’ suit did not

vindicate civil rights. 541 F.2d 1040 (4th Cir. 1976). In

Chastang, an employer’s profit-sharing and retirement plan

discriminated based on sex. The discrimination had been legal

when incorporated into the plan, could not be modified

unilaterally by the defendants once it became illegal, but had

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been amended “with reasonable dispatch . . . once the need for

amendment was established” and in any event before the

litigation began. Id. at 1045. We held that “[b]ecause the

plan was amended to eliminate its illegally discriminatory

aspects before plaintiffs’ suits were filed, they cannot be said

to have derived any benefit, direct or indirect, from the

litigation.” Id. Accordingly, we upheld the district court’s

finding of special circumstances. Id.

By contrast, in Bills v. Hodges, we held that the district

court abused its discretion by denying successful civil rights

plaintiffs their attorneys’ fees under Section 1988. 628 F.2d

844 (4th Cir. 1980). In Bills, the plaintiffs’ landlord served

them with an eviction notice motivated by the plaintiffs’

“biracial dating and entertainment practices.” Id. at 845. The

district court awarded the plaintiffs injunctive relief under

the Civil Rights Act and Fair Housing Act but denied them

attorneys’ fees under Section 1988 because the plaintiffs “could

well afford to hire their own lawyers” and because “the court

felt the defendant acted in good faith.” Id. at 847. We

squarely rejected both of those “special circumstances” and held

that the plaintiffs were “entitled to an award of attorneys’

fees . . . .” Id.

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B.

As stated previously, the district court here held that

three “special circumstances” justified the denial of attorneys’

fees to Lefemine: “(1) the Defendants’ qualified immunity, (2)

the absence of a policy or custom of discrimination against

abortion protestors by the Greenwood County Sheriff’s Office,

and (3) the limited nature of [Lefemine’s] injunctive relief.”

Lefemine, 2013 WL 1499152, at *4. Lefemine argues that in so

doing, the district court committed reversible error. To

determine whether the district court abused its discretion in

determining that “special circumstances” justified denying

Lefemine his fees, we examine each of the circumstances upon

which the district court relied.

1.

The district court first found that a “special

circumstance” arose from its determination that the Defendant

Officers were entitled to qualified immunity. Because qualified

immunity shielded the Defendant Officers from personal liability

for damages, Lefemine was unable to obtain even nominal damages—

the only remedy Lefemine sought but failed to obtain. 2 Lefemine,

672 F.3d at 297–301, 303. The district court deemed qualified

2

Although Lefemine’s complaint included a prayer for

“compensatory and/or nominal” damages, J.A. 21, Lefemine

abandoned his quest for compensatory damages and sought only

nominal damages at summary judgment.

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immunity “special” such that it made an award of attorneys’ fees

under Section 1988 unjust.

But neither this Court nor the Supreme Court has ever held

that qualified immunity constitutes a special circumstance

supporting the denial of Section 1988 attorneys’ fees. In fact,

the case law suggests quite the opposite. As the Supreme Court

has underscored, in many Section 1988 cases, “immunity doctrines

and special defenses, available only to public officials,

preclude or severely limit the damage remedy.” Rivera, 477 U.S.

at 577 (quotation marks and emphasis omitted). Accordingly,

“awarding counsel fees to prevailing plaintiffs in such

litigation is particularly important and necessary if [f]ederal

civil and constitutional rights are to be adequately protected.”

Id. (quotation marks and citation omitted).

In its qualified immunity analysis, the district court

sought to bolster its special circumstance finding by noting

that “Defendants’ actions [were] taken in good faith” and that

“[i]t was never the Defendants’ intent to infringe upon

[Lefemine’s] First Amendment rights . . . .” Lefemine, 2013 WL

1499152, at *5. Yet we, and our sister circuits, have

repeatedly rejected good faith as a special circumstance

justifying the denial of Section 1988 attorneys’ fees—and for

good reason: “The Civil Rights Attorney’s Fees Awards Act is

not meant as a ‘punishment’ for ‘bad’ defendants who resist

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plaintiffs’ claims in bad faith. Rather, it is meant to

compensate civil rights attorneys who bring civil rights cases

and win them.” Williams v. Hanover Hous. Auth., 113 F.3d 1294,

1302 (1st Cir. 1997). See also, e.g., Bills, 628 F.2d at 847

(“The district court also refused to award attorneys’ fees at

least partly because the court felt the defendant acted in good

faith. However, a defendant’s good faith is not a special

circumstance that would render an award of fees unjust.”);

Wilson v. Stocker, 819 F.2d 943, 951 (10th Cir. 1987) (noting

that “the alleged special circumstances amount to no more than

assertions that the Attorney General has acted in good faith, a

ground overwhelmingly rejected by the courts” and that Section

1988 “is not designed to penalize defendants but to encourage

injured individuals to seek relief”); Lampher v. Zagel, 755 F.2d

99, 104 (7th Cir. 1985) (calling the defendant’s good faith

“irrelevant” to a Section 1988 fee determination); Kirchberg v.

Feenstra, 708 F.2d 991, 999 (5th Cir. 1983) (“Good faith is not

a special circumstance.”).

We believe that special government immunities that restrict

civil rights plaintiffs’ recoveries weigh in favor of—and

certainly not against—awarding Section 1988 fees. The district

court here erred in holding otherwise. Accordingly, we hold

that the district court abused its discretion in denying an

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attorneys’ fee award to Lefemine because the Officer Defendants

were shielded by qualified immunity.

2.

The district court also found that “the absence of a policy

or custom of discrimination against abortion protestors by the

Greenwood County Sheriff’s Office” constituted a special

circumstance that justified the denial of an attorneys’ fee

award under Section 1988. Lefemine, 2013 WL 1499152, at *4. We

disagree.

Unless a government entity has a policy or custom of

discrimination, a court will not attribute an individual’s

constitutional violations to the government entity. Monell v.

Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 694

(1978) (“[A] local government may not be sued under [Section]

1983 for an injury inflicted solely by its employees or agents.

Instead, it is when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy,

inflicts the injury that the government as an entity is

responsible under [Section] 1983.”). Here, Lefemine failed to

show that the Greenwood County Sheriff’s Office had a policy or

custom of discrimination. The Sheriff’s Office thus could not

be held liable for the Officer Defendants’ constitutional

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violations, and Lefemine could not obtain even nominal damages

from the Sheriff’s Office. Lefemine, 672 F.3d at 297-301. 3

But neither this Court nor the Supreme Court has ever

suggested that a plaintiff’s inability to bring a viable Monell

claim against a government entity somehow blocks otherwise

prevailing civil rights plaintiffs from obtaining their

attorneys’ fees under Section 1988. And for good reason—because

Section 1988 “is not meant as a ‘punishment’ for ‘bad’

defendants” but is instead “meant to compensate civil rights

attorneys who bring civil rights cases and win them.” Williams,

113 F.3d at 1302. It would turn Section 1988 on its head to

suggest that a plaintiff who successfully sues government

officials for civil rights violations should be denied

attorneys’ fees for the profoundly non-“special” circumstance

that the entity for whom those officials work could not be held

liable under Monell.

Again, “awarding counsel fees to prevailing plaintiffs in”

civil rights litigation against government entities and

officials “is particularly important and necessary if [f]ederal

civil and constitutional rights are to be adequately protected.”

Rivera, 477 U.S. at 577 (quotation marks and citation omitted).

The district court here erred in suggesting otherwise by deeming

3

Though, again, nominal damages was the only relief

Lefemine sought but failed to achieve.

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the absence of a custom or policy a special circumstance.

Denying Lefemine attorneys’ fees on that basis constituted an

abuse of discretion.

3.

Finally, the district court found that the limited nature

of the relief granted to Lefemine constituted a special

circumstance making a Section 1988 fee award unjust. Yet this

factor, like the two before it, cannot support denying Lefemine

his attorneys’ fees.

The relief Lefemine obtained is notably broader than the

district court acknowledged. Significantly, Lefemine obtained

two of the remedies he sought: an injunction and a declaratory

judgment against multiple defendants. Additionally, although

the district court characterized the injunction as “extremely

limited[,]” Lefemine, 2013 WL 1499152, at *7, it bars

Defendants from future restrictions of Lefemine’s graphic signs

“without narrowly tailoring [the] restrictions to serve a

compelling state interest.” Lefemine, 732 F. Supp. 2d at 627.

Particularly in light of Defendants’ position that, faced with

the same circumstances again, the Sheriff’s Office would respond

“in exactly the same manner: order the person(s) to stop or face

criminal sanctions[,]” J.A. 225, the injunction’s impact is

hardly de minimis.

17

Moreover, while the district court accurately noted that

Lefemine “was able to conduct two other protests without

incident,” Lefemine, 2013 WL 1499152, at *7, the fact that

Defendants had not yet further violated Lefemine’s First

Amendment rights is of little moment. Defendants previously

maintained that they would respond to a future protest in

exactly the same way as they originally responded: by

“order[ing] the person(s) to stop or face criminal sanctions.”

Lefemine, 732 F. Supp. 2d at 619 (quotation marks and citation

omitted). The injunction bars that response. The fact that

Lefemine appealed to this Court and then to the Supreme Court

and won only further underscores that the significance of his

case is not as “minimal” as the district court portrayed.

Lefemine, 2013 WL 1499152, at *7.

In downplaying the relief Lefemine achieved, the district

court looked to Mercer, 401 F.3d 199, which, in turn, looked to

Farrar v. Hobby, 506 U.S. 103 (1992). Farrar, in which the

Supreme Court affirmed the denial of attorneys’ fees based on

the limited nature of the plaintiff’s relief, provides an

instructive contrast to this case. In Farrar, the plaintiff

sought $17 million in compensatory damages, alleging violations

of his right to due process. 506 U.S. at 106. Yet the

plaintiff was awarded only nominal damages. Id. at 107. The

Supreme Court held that “[w]hen a [prevailing party] recovers

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only nominal damages because of his failure to prove an

essential element of his claim for monetary relief, the only

reasonable fee is usually no fee at all.” Id. at 115 (citation

omitted).

In contrast to Farrar, Lefemine successfully proved the

elements required to secure the relief he sought—namely, an

injunction and a declaratory judgment. And, for the reasons

discussed above, Lefemine could not have obtained money damages

against the Defendants for reasons related not to the merits of

his case, but rather to the special governmental immunities and

defenses that weigh in favor of awarding fees. Accordingly,

neither Mercer nor Farrar supports denying attorneys’ fees here.

In sum, Lefemine obtained nearly all of the relief he

sought—namely, declaratory and injunctive relief protecting his

First Amendment rights. And the district court erred in holding

that the “limited nature of relief granted” constituted a

special circumstance making a fee award unjust. Lefemine, 2013

WL 1499152, at *7.

III.

Today, we hold that qualified immunity, the absence of a

policy or custom of discrimination, and the nature of the relief

granted here—whether considered individually or together through

a “totality of the circumstances” lens—cannot support the denial

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of attorneys’ fees to Lefemine, a prevailing civil rights

plaintiff. By denying Lefemine his fees on those bases, the

district court abused its discretion, and, accordingly, is

reversed.

Consequently, we remand this matter to the district court

with instructions to allow Lefemine to make a fee application

and for an ensuing determination of the reasonable fee award for

Lefemine’s successful prosecution of this civil rights matter,

including “the time spent defending entitlement to attorney’s

fees . . . .” 4 Mercer, 401 F.3d at 202 n.3 (quotation marks and

citation omitted).

REVERSED AND REMANDED

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“[T]he critical focus in calculating a reasonable

attorney’s fee is in determining the lodestar figure[,]” i.e.,

“[a] fee based upon reasonable rates and hours[.]” Daly v.

Hill, 790 F.2d 1071, 1078 (4th Cir. 1986). Indeed, “[a] proper

computation of the lodestar fee will, in the great majority of

cases, constitute the ‘reasonable fee’ contemplated by [Section]

1988.” Id.

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