Rodolfo Sanchez v. Art Acevedo

Case: 13-50916 Document: 00512875915 Page: 1 Date Filed: 12/18/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50916 United States Court of Appeals

Fifth Circuit

FILED

RODOLFO SANCHEZ; KRISTOPHER SLEEMAN, December 18, 2014

Lyle W. Cayce

Plaintiffs - Appellants Clerk

v.

CITY OF AUSTIN,

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before KING, GRAVES, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Beginning in October 2011, Plaintiffs-Appellants Rodolfo Sanchez and

Kristopher Sleeman participated in the Occupy Wall Street protests that took

place in the plaza in front of Austin City Hall. After the protests had already

started, Defendant-Appellee City of Austin promulgated a policy under which

it issued criminal-trespass notices—oral or written notices that individuals

must depart or must not enter city property—to Appellants and other

protestors. Appellants sued the City in district court, alleging facial and as-

applied challenges to the City’s policy under the First and Fourteenth

Amendments. Appellants sought declaratory and injunctive relief and

damages. At the district court’s request, the case proceeded to a bench trial

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merely one month after Appellants filed their complaint. Nine months later,

the district court entered an order declaring the City’s policy unconstitutional

on its face and enjoining the City from issuing criminal-trespass notices under

the policy. The district court, however, denied Appellants’ motion for attorneys’

fees and expenses under 42 U.S.C. § 1988, even though Appellants had

prevailed on their constitutional challenge. Appellants timely appealed this

denial. We now REVERSE the district court’s denial of fees and REMAND for

the district court to determine the amount of the award.

FACTS AND PROCEEDINGS

On October 6, 2011, at the inception of the Occupy Wall Street protests

in Austin, Sanchez and Sleeman joined the protests that convened at the plaza

in front of Austin City Hall. On October 30, 2011, there was a large protest in

the plaza. Police officers arrested Sanchez and Sleeman and issued both of

them a verbal criminal-trespass notice (“CTN”), informing Sleeman that he

was banned from City Hall for one year, Sanchez that he was banned for two

years, and both that they would be arrested if they returned.

On November 1, 2011—two days after Appellants received their CTNs—

the City formalized the CTN procedure by issuing an Administrative Bulletin

entitled “Criminal Trespass Notices on City Property” (“the policy”). The policy

defined a CTN as: “[An] oral or written communication to a person that: A.

Entering by that person onto City Property is forbidden; or B. The person must

immediately depart from City Property.” The policy defined “City Property” to

include the City Hall building and surrounding property. With some

exceptions, the policy stated that the City would ordinarily warn individuals

before giving them CTNs. And the policy further guaranteed that anyone who

received a CTN would have the opportunity for prompt administrative review.

This review process, however, was only available after a person received a

CTN—in other words, there was no possibility of pre-deprivation review—and

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if a CTN recipient failed to seek review within thirty days of receiving the

notice, the CTN became final and unreviewable except upon a good-cause

showing. A request for review would not stay or suspend the CTN.

On November 21, 2011, Appellants filed suit under 42 U.S.C. § 1983

against the City and several City officials, alleging that the policy, both facially

and as applied, violated the First Amendment and due-process rights of

Appellants, other Occupy Austin protestors, and all citizens of Austin who used

the plaza as a forum for free expression. Appellants alleged further that the

policy was overbroad and vague and that the City enacted the policy to

retaliate against the Occupy Austin protestors, in violation of their First

Amendment rights. Appellants sought declaratory relief; injunctive relief;

attorneys’ fees, expenses, and costs; and damages. Appellants also applied for

a temporary restraining order (‘TRO”) to enjoin the City from issuing CTNs,

and from enforcing CTNs already issued.

Instead of resolving Appellants’ TRO application, the district court asked

the parties to consider whether it would be feasible for the court to expedite a

trial on the merits so that it could resolve the lawsuit quickly and conclusively.

The parties ultimately agreed to proceed to a trial on the merits that would

start exactly one month after Appellants filed their complaint in the district

court. Because they were going to trial so quickly, Appellants withdrew their

application for a TRO.

Meanwhile, the City agreed to expedite Appellants’ prior requests for

administrative review of the CTNs that the City had issued to them. At that

review, without any hearing or presentation of evidence by Appellants’ counsel,

the City modified both CTNs so that both Sleeman’s and Sanchez’s bans from

the plaza expired on November 21, 2011, the day that they filed their suit in

the district court. Having exhausted their administrative remedies under the

City’s policy, Appellants then amended their complaint to include claims that

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the City had denied them due process of law under the Fourteenth

Amendment.

On December 21 and 22, 2011, the district court conducted a bench trial.

In addition to Sanchez, three other witnesses testified. At the conclusion of the

trial, the district court explained that it was not prepared to rule on Appellants’

request for a preliminary injunction and instead would “write an opinion that

disposes all of the issues” and “get [an opinion] out as quickly as” it could. While

the district court had the case under consideration, however, the City began to

enforce two new policies at City Hall: first, a curfew that prohibited use of the

plaza between 10 p.m. and 6 a.m., and second, a requirement that groups using

the plaza first make a reservation with the City. 1 As a result of these new

policies, the City cleared the Occupy Austin protestors from the plaza on

February 3, 2012, and the Occupy Austin protest at City Hall came to an end.

On September 27, 2012—nine months after the conclusion of the bench

trial—the district court entered an order declaring the City’s CTN policy

unconstitutional on its face and enjoining the City from issuing CTNs under

the policy. Merits Order at 1, 18. The district court found that the policy was a

content-neutral time, place, and manner restriction on protected speech in a

traditional public forum and that the policy failed intermediate scrutiny

because it did not leave open adequate alternative avenues for communication.

Id. at 10–14. The district court found further that the policy’s administrative-

review process violated Appellants’ due-process rights because the post-

1 There appears to be no evidence in the record of the City’s issuance of these new

rules beyond the district court’s statements in its findings of fact and conclusions of law. In

its order enjoining the CTN policy, however, the district court stated that it had considered

“the parties’ post-trial letters.” Sanchez v. City of Austin, No. 1:11-cv-00993-LY, slip op. at 1

(W.D. Tex. Sept. 27, 2012), ECF No. 67 [hereinafter Merits Order]. The City asserts that

“[t]he City’s new policy is in the record,” but its only citation for that proposition is to the

City’s own response in opposition to Appellants’ motion for fees.

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deprivation nature of the review created a high risk of erroneous deprivation

of Appellants’ First Amendment rights. Id. at 17–18. The district court entered

final judgment in Appellants’ favor, declaring the policy facially

unconstitutional, ordering a permanent injunction against its enforcement,

and awarding all costs to Appellants, but denying all other requested relief,

including Appellants’ requested nominal damages. The City did not appeal the

district court’s merits ruling.

Following the district court’s order and final judgment, Appellants

moved for attorneys’ fees, costs, and expenses under 42 U.S.C. § 1988, arguing

that the relief they obtained was sufficient to render them prevailing parties

and that their fees were reasonable and necessary given the expedited timeline

of the bench trial, as well as the skill and experience level of their attorneys.

The City opposed an award of fees and asserted that a fee award would be

unjust because of special circumstances. In particular, the City argued that

because the City had not yet formalized its CTN policy when Appellants

received their CTNs, Appellants’ injuries were not caused by the City’s policy

and the City therefore could not be liable under the Monell theory of liability. 2

The City likewise argued that Appellants were not prevailing parties because

they had failed to show that their constitutional rights had been violated by

the policy and therefore also had failed to show that the relief that the district

court ordered had altered the legal relationship between the parties. Next, the

City asserted that Appellants had filed suit knowing that the only potential

2 The City also moved to alter or amend the judgment on the same basis. The district

court denied the motion, concluding that “it is beyond question that the City had and enforced

the criminal-trespass policy set forth in Administrative Bulletin 11-04, Criminal Trespass

Notices on City Property, even though the policy was not reduced to writing until two days

after Plaintiffs were arrested and received verbal criminal-trespass notices. The City clearly

subjected Plaintiffs to the policy.” Sanchez v. City of Austin, No. 1:11-cv-00993-LY, slip op. at

2 (W.D. Tex. Feb. 4, 2013), ECF No. 81 [hereinafter Post-Trial Order]. Again, as with the

district court’s merits ruling, the City did not appeal the denial of this motion.

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recovery could be for their attorneys, whose requested fees bordered on

“shocking the conscious [sic].” Finally, the City argued in the alternative that

if the district court did award fees, the amount of the award sought should be

reduced because it was unreasonable.

The district court ultimately found as a matter of law that Appellants

were prevailing parties because they obtained a declaratory judgment and

injunction. Sanchez v. City of Austin, No. 1:11-cv-00993-LY, slip op. at 3 (W.D.

Tex. Sept. 3, 2013), ECF No. 86 [hereinafter Fee Order]. Despite this

conclusion, the district court denied Appellants’ request for attorneys’ fees. Id.

First, the district court noted that Appellants’ CTNs had been modified and no

longer restricted their access to City Hall. Id. The court also recognized that

the Occupy Austin protest had ended before the court had entered final

judgment in the lawsuit. Id. Finally, the district court also took notice of the

City’s new curfew and reservation rules and concluded, as a result, that the

CTN policy “was no longer in effect.” Id. In sum, the district court reasoned

that “the court’s order enjoining the enforcement of the City’s policy had little

or no effect, due to the fact that Plaintiffs were no longer subject to the

criminal-trespass notices that they had been issued and that the City’s policy

was no longer in effect.” Id. The court therefore denied Appellants’ fee motion,

ultimately concluding that “special circumstances in this case render an award

[of] attorney’s fees to the prevailing parties unjust.” Id. at 4. Appellants timely

filed a notice of appeal.

STANDARD OF REVIEW

“We review a denial of § 1988 attorney’s fees for abuse of discretion.”

Dean v. Riser, 240 F.3d 505, 507 (5th Cir. 2001) (citing Cruz v. Hauck, 762 F.2d

1230, 1233 (5th Cir. 1985)). “[N]evertheless, the discretion afforded district

courts to deny attorney’s fees to prevailing plaintiffs under § 1988 is

exceedingly narrow.” Cruz, 762 F.2d at 1233 (internal quotation marks and

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citation omitted); see also Pruett v. Harris Cnty. Bail Bond Bd., 499 F.3d 403,

417 (5th Cir. 2007) (“[T]he discretion to deny § 1988 fees is . . . extremely

narrow.” (ellipsis in original) (internal quotation marks and citation omitted)).

“In evaluating whether the district court abused its discretion to award

attorney’s fees, this Court reviews the factual findings supporting the grant or

denial of attorney’s fees for clear error and the conclusions of law underlying

the award de novo.” Dearmore v. City of Garland, 519 F.3d 517, 520 (5th Cir.

2008). “[T]he characterization of prevailing-party status for awards under fee-

shifting statutes such as § 1988 is a legal question subject to de novo review.”

Id. (alteration in original) (internal quotation marks and citation omitted). And

a district court’s “erroneous interpretation of the special circumstances that . . .

could render an award unjust” is an abuse of discretion. Pruett, 499 F.3d at

417; see also id. (“We have held that given the strong policy behind § 1988 of

awarding fees to prevailing plaintiffs, defendants must make an ‘extremely

strong showing’ of special circumstances to avoid paying attorneys’ fees . . . .”

(citation omitted)).

DISCUSSION

There are no lingering merits issues in this appeal. The merits have been

conclusively decided in Appellants’ favor, without any appeal by the City.

Instead, the sole issue on appeal is whether the district court erred when it

denied Appellants’ motion for attorneys’ fees.

I. Prevailing-Party Status

As a preliminary matter, Appellants were the “prevailing parties” in the

underlying litigation. Section 1988 provides for attorneys’ fees to prevailing

parties in civil-rights cases: “In any action or proceeding to enforce a provision

of section[] . . . 1983 . . . of this title, . . . 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 . . . .” 42 U.S.C. § 1988(b) (emphasis added). “The touchstone

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of the prevailing party inquiry must be the material alteration of the legal

relationship of the parties in a manner which Congress sought to promote in

the fee statute.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489

U.S. 782, 792–93 (1989). Significant here, the Supreme Court has emphasized

that “the prevailing party inquiry does not turn on the magnitude of the relief

obtained.” Farrar v. Hobby, 506 U.S. 103, 114 (1992).

The Supreme Court reiterated this point recently in Lefemine v.

Wideman when it explained that a plaintiff prevails “‘when actual relief on the

merits of [the plaintiff’s] claim materially alters the legal relationship between

the parties by modifying the defendant’s behavior in a way that directly

benefits the plaintiff.’” 133 S. Ct. 9, 11 (2012) (per curiam) (quoting Farrar, 506

U.S. at 111–12). The Court continued that it has “repeatedly held that an

injunction or declaratory judgment, like a damages award, will usually satisfy

that test.” Id. (citing Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam)). The

Court thus concluded that the plaintiffs in Lefemine, who had not obtained

nominal damages, but instead had obtained a permanent injunction against

the defendant police officers for violations of their First Amendment rights,

were prevailing parties under § 1988. Id. at 10–11. The Court rejected the

Fourth Circuit’s reasoning that a denial of fees was appropriate because the

injunction merely ordered the defendants to comply with the law and because

no other damages were awarded. Id. at 11. The Court then remanded for the

lower courts to conduct the special-circumstances inquiry to determine

whether “there may be other grounds on which the police officers could contest

liability for fees.” Id. at 12.

Here, the issue of Appellants’ prevailing-party status has been

conclusively resolved. The district court concluded that Appellants are

prevailing parties within the meaning of § 1988. See Fee Order at 2–3. The

City did not appeal that determination. And although, on appeal, the City

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states in a footnote that it “disputes” prevailing-party status, the State

conceded at oral argument that it is not challenging Appellants’ prevailing-

party status on appeal. Cf. Art Midwest, Inc. v. Atl. Ltd. P’ship XII, 742 F.3d

206, 211–12 (5th Cir. 2014) (holding that a party’s failure to cross-appeal an

adverse ruling in an initial district court proceeding bars that party from

revisiting that ruling on remand). In any event, the argument that Appellants

were not prevailing parties fails because Appellants obtained the declaratory

and injunctive relief they sought. See Lefemine, 133 S. Ct. at 11. That

Appellants did not obtain the nominal damages that they sought does not alter

their prevailing-party status. See id. (concluding that plaintiffs were prevailing

parties when they obtained an injunction but not nominal damages).

II. Special Circumstances

Having concluded that Appellants are the prevailing parties, the next

issue is whether the district court erred in concluding that “special

circumstances” rendered the award of fees unjust. Under § 1988, “a prevailing

party should ordinarily recover an attorney’s fee unless special circumstances

would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429

(1983) (internal quotation marks and citation omitted).

The special-circumstances exception is a narrow carve-out of the general

rule that prevailing civil-rights plaintiffs should be awarded fees. It is true that

the plain language of the statute grants district courts discretion to determine

whether to award the prevailing party a reasonable attorney’s fee, see 42

U.S.C. § 1988(b) (stating that a court “may” award fees “in its discretion”), but

the judicial gloss on § 1988, and its legislative history, have constrained that

discretion, in most cases converting the statute’s “may” into a “must.” Indeed,

“in [the] absence of special circumstances a district court not merely ‘may’ but

must award fees to the prevailing plaintiff.” Indep. Fed’n of Flight Attendants

v. Zipes, 491 U.S. 754, 761 (1989) (interpreting Title VII’s nearly identical fee

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provision). This court has held that, “absent special circumstances, a prevailing

plaintiff should be awarded section 1988 fees as a matter of course.” Cruz, 762

F.2d at 1233 (internal quotation marks and citation omitted). This court has

further emphasized that “[b]ecause Congress believed that the incentive of

attorney’s fees was critical to the enforcement of the civil rights laws, section

1988 requires an extremely strong showing of special circumstances to justify a

denial of fees.” Hous. Chronicle Publ’g Co. v. City of League City, Tex., 488 F.3d

613, 623 (5th Cir. 2007) (internal quotation marks and citation omitted); see

also Espino v. Besteiro, 708 F.2d 1002, 1005 (5th Cir. 1983) (“[T]he special

circumstances exception to the general rule requiring the award of fees is an

extremely limited one.”); Riddell v. Nat’l Democratic Party, 624 F.2d 539, 544–

45 (5th Cir. 1980) (providing examples of cases that might satisfy the special-

circumstances exception). 3

3 Other circuits have similarly read § 1988’s discretion narrowly. See, e.g., Vasquez v.

Rackauckas, 734 F.3d 1025, 1055 (9th Cir. 2013) (“[A] court’s discretion to deny fees under

§ 1988 is very narrow and . . . fee awards should be the rule rather than the exception.”

(alterations in original) (internal quotation marks and citation omitted)); De Jesús Nazario

v. Morris Rodríguez, 554 F.3d 196, 200 (1st Cir. 2009) (“[D]espite the permissive phrasing of

the Fees Act, [fee] awards in favor of prevailing civil rights plaintiffs are virtually obligatory.”

(alteration in original) (internal quotation marks and citation omitted)); Deja Vu of Nashville,

Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 421 F.3d 417, 422 (6th Cir. 2005)

(“[T]he burden is on the non-prevailing party to make a strong showing that special

circumstances warrant a denial of fees.” (internal quotation marks and citation omitted));

Turner v. D.C. Bd. of Elections & Ethics, 354 F.3d 890, 895–96 (D.C. Cir. 2004) (“[I]t is now

axiomatic that . . . the discretion of a district court in deciding whether to award . . . fees to a

prevailing party is narrowly limited.” (first ellipsis in original) (internal quotation marks and

citation omitted)); Peter v. Jax, 187 F.3d 829, 837 (8th Cir. 1999) (“Because the language of

§ 1988 does not include the ‘special circumstances’ exception, this judicially created exception

should be narrowly construed.” (internal quotation marks and citation omitted)). The

Supreme Court has also observed that § 1988’s legislative history confirms that the discretion

the statute grants district courts is narrow. See Hensley, 461 U.S. at 430 (explaining that fees

“ordinarily” should be awarded to prevailing parties as a matter of course (quoting S. Rep.

No. 94-1011, at 5912 (1976))); see also Webb v. Bd. of Educ. of Dyer Cnty., Tenn., 471 U.S.

234, 247 (1985) (recognizing “Congress’ general intent for ‘the courts to use the broadest and

most effective remedies available to achieve the goals of our civil rights laws.’” (quoting S.

Rep. No. 94-1011, at 5910–11)).

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On appeal, the City conflates the prevailing-party inquiry and the

special-circumstances inquiry. In support of this approach, the City states that

“[a]rguments applicable to prevailing party status, which the City disputes,

are equally applicable to attorney’s fees either directly or by analogy.” This

argument is flawed for two reasons. First, the case that the City cites for that

proposition, LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358, 371 (5th Cir.

2002), is inapposite. In that case, this court did not discuss the special-

circumstances analysis; instead, given its disposition of the appeal on the

merits, it remanded for a determination as to whether the plaintiffs still could

be considered prevailing parties. See id. Second, the City’s proposition is

incorrect. The two inquiries—prevailing-party status and special

circumstances—are distinct. See Lefemine, 133 S. Ct. at 11–12; cf. Farrar, 506

U.S. at 114 (“Although the ‘technical’ nature of a nominal damages award or

any other judgment does not affect the prevailing party inquiry, it does bear

on the propriety of fees awarded under § 1988. 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 and citation omitted)). And as discussed above,

Appellants’ prevailing-party status has already been conclusively resolved.

Turning to the district court’s analysis, we agree with Appellants that

the district court’s special-circumstances finding was an abuse of discretion. In

denying fees, the district court identified two factors that it believed were

special circumstances: the “limited nature and scope” of the injunctive relief

that Appellants won and the “limited injury” to Appellants’ rights. Fee Order

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at 3. As a matter of law, these factors are relevant to the reasonableness of a

fee request; however, they play no role in the special-circumstances analysis. 4

A prevailing plaintiff’s degree of success is not a special circumstance

that justifies a complete denial of § 1988 fees. Instead, “the degree of the

plaintiff’s overall success goes to the reasonableness of the award under

Hensley, not to the availability of a fee award vel non.” Tex. State Teachers

Ass’n, 489 U.S. at 793; cf. City of Riverside v. Rivera, 477 U.S. 561, 574 (1986)

(“We reject the proposition that fee awards under § 1988 should necessarily be

proportionate to the amount of damages a civil rights plaintiff actually

recovers.”). Consistent with this instruction, this court has held that plaintiffs’

obtaining only partial relief is not a special circumstance rendering an award

unjust. See Pruett, 499 F.3d at 418 (“Under Hensley’s standard for partial

success (a different standard than the ‘special circumstances’ that occasionally

allow a defendant to avoid attorneys’ fees altogether), a court may award

reduced fees to plaintiffs that are prevailing parties but have lost on some

claims.”); Hous. Chronicle, 488 F.3d at 624 (reversing the district court’s denial

of attorneys’ fees, even while partially reversing the district court’s holding

that a statute was unconstitutional, because the district court did not provide

any explanation for its denial of fees, plaintiffs remained prevailing parties in

large part, and plaintiffs obtained the primary relief they sought in court);

Hopwood v. Texas, 236 F.3d 256, 278 (5th Cir. 2000) (concluding that the

district court “properly accounted for the Plaintiffs’ lack of success in obtaining

monetary and other direct relief by reducing” their fee award but rejecting

defendant city’s argument that the district court should have denied fees

4Because we conclude that the district court made an error of law in finding special

circumstances, we do not reach Appellants’ alternative argument that the district court

abused its discretion in raising the special-circumstances exception sua sponte as a basis for

denying fees.

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entirely, noting that plaintiffs achieved “the principal goal of their lawsuit”

when they obtained injunctive relief barring the law school’s use of racial

preferences in admissions). 5

Contrary to the cases that the City relies on, the same is true of a

prevailing plaintiff’s limited injury. First, the City relies on the district court’s

decision on remand from the Supreme Court in Lefemine v. Wideman, C.A. No.

8:08-3638-HMH, 2013 WL 1499152, at *4 (D.S.C. Apr. 9, 2013), where the

district court again denied fees, finding three special circumstances: the

defendant’s qualified immunity, the absence of a policy or custom of

discrimination by the defendants, and “the limited nature of the injunctive

relief.” Tellingly, however, the Fourth Circuit reversed the district court,

holding that none of those factors could constitute special circumstances that

justified the denial of fees. See Lefemine v. Wideman, 758 F.3d 551, 552, 559

(4th Cir. 2014). The Fourth Circuit reasoned that “neither [the Fourth Circuit]

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.” Id. at 558. 6 The Fourth Circuit reasoned further that the limited

5 Other circuits have reasoned to similar conclusions. See, e.g., Chaudhry v. City of

Los Angeles, 751 F.3d 1096, 1110 (9th Cir. 2014) (noting that “degree of success” goes to the

amount of the fee award); Resurrection Bay Conservation Alliance v. City of Seward, Alaska,

640 F.3d 1087, 1094 (9th Cir. 2011) (rejecting the district court’s conclusion that the plaintiff’s

failure to obtain the damages it sought in a citizen enforcement suit constituted a special

circumstance because victory was significant in furthering the statute’s purpose); Gudenkauf

v. Stauffer Commc’ns, Inc., 158 F.3d 1074, 1082 (10th Cir. 1998) (rejecting as a special

circumstance the argument that the “nature” of plaintiff’s victory is “at most . . . nominal or

moral”); Crowder v. Hous. Auth. of City of Atlanta, 908 F.2d 843, 850 (11th Cir. 1990)

(concluding that plaintiffs were prevailing parties and then rejecting the district court’s

determination that plaintiffs’ “marginal” success constituted special circumstances because

it had already “decided as a matter of law that the plaintiffs prevailed on a significant issue

in which they achieved some of the benefit sought”).

6 The City devotes a portion of its brief to the argument that Appellants failed to prove

that the City had a policy or custom that could trigger municipal liability. As noted above,

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nature of the injunctive relief was not a special circumstance because the

plaintiff obtained two of the remedies that he sought—an injunction and

declaratory relief—and the injunction was broader than the district court

acknowledged because it barred the defendants from future violations of the

plaintiff’s First Amendment rights. See id. at 558–59. Similarly, here,

Appellants obtained two of the remedies they sought—an injunction and

declaratory relief—and the injunction prohibited the City from enforcing its

policy by issuing CTNs. See Merits Order at 18.

The City’s reliance on Farrar v. Hobby, 506 U.S. 103 (1992), is also

misplaced. Citing Farrar for support, the City argues that Appellants’ injury

and victory merely were technical or de minimis and thus justify a wholesale

denial of fees. It is true that the Court in Farrar stated that, “[i]n some

circumstances, even a plaintiff who formally ‘prevails’ under § 1988 should

receive no attorney’s fees at all.” 506 U.S. at 115. The Court clarified, however,

that a plaintiff who formally prevails, yet should receive zero fees, is one “who

seeks compensatory damages but receives no more than nominal damages.” Id.

Thus, “[i]n a civil rights suit for damages, . . . the awarding of nominal damages

also highlights the plaintiff’s failure to prove actual, compensable injury.” Id.

(emphasis added). Here, by contrast, Appellants sued for declaratory and

injunctive relief and only nominal damages. Thus, Farrar does not control. See

Riley v. City of Jackson, Miss., 99 F.3d 757, 759–60 (5th Cir. 1996)

(distinguishing Farrar as “illustrative of cases where the plaintiff sought only

money damages and was essentially unsuccessful since he did not achieve in

any way the ultimate goal of the litigation”); Pembroke v. Wood Cnty., Tex., 981

F.2d 225, 231 n.27 (5th Cir. 1993) (noting that Farrar does not control when

the City raised this Monell argument in the district court, and the district court rejected the

argument in an order that the City did not appeal. The City therefore cannot challenge that

conclusion on appeal.

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the plaintiffs are seeking prospective remedies only); see also Hescott v. City of

Saginaw, 757 F.3d 518, 524–25 (6th Cir. 2014) (distinguishing Farrar on

similar grounds and rejecting the argument that the monetary value of

plaintiffs’ loss weighed in favor of finding a special circumstance). Unlike

Farrar, Appellants’ primary goal in this litigation was to force the City to stop

issuing CTNs. Appellants achieved that goal by securing a permanent

injunction against future enforcement of the CTN policy. A fee award was

therefore appropriate.

Finally, the City points to this court’s opinion in Brister v. Faulkner, 214

F.3d 675, 686–87 (5th Cir. 2012), to support its argument that the district court

properly denied fees based on the allegedly limited injury to Appellants. Again,

this case is inapposite, and the City’s reliance on it underscores the City’s

inexact conflation of the prevailing-party and special-circumstances inquiries.

In Brister, this court affirmed the district court’s denial of fees because the

plaintiffs were not prevailing parties. Id. at 687. There, the defendant

university forced the plaintiffs to leave school property because they were

blocking patrons’ access to the property. See id. at 677. In the subsequent

litigation, the district court declared the university’s total ban on leafleting

unconstitutional, but concluded that the university had not violated the

plaintiffs’ rights because it had removed them from the property for another,

permissible reason. Id. at 678. Thus, this court affirmed the district court’s

denial of fees because the plaintiffs’ constitutional rights were not violated and

therefore the declaratory judgment did nothing to alter their legal relationship

with the university. Id. at 687. In other words, Brister affirmed the denial of

fees not because there was a limited injury, but because there was no injury.

Here, by contrast, the district court expressly concluded that “the City’s policy

on issuing criminal-trespass notices violates Plaintiffs’ First and Fourteenth

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Amendment rights.” 7 Merits Order at 1. Moreover, Appellants obtained an

injunction against the policy, which vindicated not only their First Amendment

rights but also the First Amendment rights of all of the citizens attempting to

exercise those rights on City property. In sum, the district court abused its

discretion when it relied on limited injury and limited success as special

circumstances justifying a wholesale denial of fees. 8 Klier v. Elf Atochem N.

Am., Inc., 658 F.3d 468, 474 (5th Cir. 2011) (“By definition, a district court

abuses its discretion when it makes an error of law or applies an incorrect legal

standard.”).

7 The district court’s statement, in its order denying fees, that “[t]he court declared

the City’s policy to be a content-neutral restriction that was unconstitutional on its face, but

not as applied,” is in tension with statements in both its order denying fees and its order

enjoining the policy. See Fee Order at 2 (“[T]he court rendered Findings of Fact and

Conclusions of Law and Final Judgment, concluding that the city’s policy violated Plaintiffs’

First Amendment right to free speech and Fourteenth Amendment right to due process . . . .”

(emphasis added)); Merits Order at 1 (“[T]he court concludes that the City’s policy on issuing

criminal-trespass notices violated Plaintiffs’ First and Fourteenth Amendment rights under

the United States Constitution.” (emphasis added)); id. at 14 (“Applying this standard to the

City’s policy in this case, the court concludes that the policy and the bans imposed on

Plaintiffs are not narrowly tailored and therefore fail constitutional scrutiny under the First

Amendment.” (emphasis added)). Finally, in its order denying the City’s motion to amend the

judgment, the district court explicitly found that the City had subjected Appellants to the

unconstitutional policy. See Post-Trial Order at 2.

8 The district court did not address the City’s alternative argument that the requested

award was unreasonable to the point that it “shocked the conscience” and thus justified the

denial of fees. Assuming, however, that the district court impliedly rejected the City’s

argument, it did not abuse its discretion in doing so. This court has affirmed the denial of

conscience-shocking fee requests only in very “extreme” circumstances that are unlike the

circumstances in this case. See Scham v. Dist. Cts. Trying Criminal Cases, 148 F.3d 554, 556–

58 (5th Cir. 1998) (affirming the denial of plaintiffs’ fee request seeking over $624,000 in a

case that involved stipulated facts, “no meetings of the parties or attorneys, no settlement

negotiations, no mediation, no court appearances, and no trial”), abrogation on other grounds

recognized by Bailey v. Mississippi, 407 F.3d 684, 686 (5th Cir. 2005). This case involved

voluminous expedited discovery, several court appearances and telephone conferences,

substantial briefing on complex legal issues, and a two-day bench trial within one month of

the initiation of the suit. Given these circumstances, Appellants’ fee request does not shock

the conscience; however, on remand, the district court may, in its discretion, consider whether

Plaintiffs’ fee request was excessive.

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Even accepting the district court’s consideration of the limited injury and

limited scope of the injunction as special circumstances, the district court’s

factual support for those points is unsupported by record evidence. In its order

denying fees, the district court stated that the Occupy protests ended on

February 3, 2012, “after the City enacted new rules prohibiting the use of the

plaza during certain hours.” Fee Order at 3. As a result, the district court

stated, “the City’s policy was no longer in effect at the time the court rendered”

its final judgment, and “the court’s order enjoining the enforcement of the

City’s policy had little or no effect, due to the fact that Plaintiffs were no longer

subject to the criminal-trespass notices that they had been issued and that the

City’s policy was no longer in effect.” Id. Relying on the district court’s

reasoning, the City points to no record evidence (other than its own and the

district court’s statements) that the CTN policy was no longer in effect at the

time that the district court entered final judgment. Indeed, in its order

enjoining the policy, the district court noted that Occupy protests had ended

after the City enacted the new rules closing the plaza, but the district court

still enjoined the policy and made no finding that the CTN policy was no longer

in effect. See Merits Order at 3 n.3, 18.

It may be true that the City stopped issuing new CTNs once it disbanded

the Occupy Austin protests on February 3, 2012. To be sure, at that point, there

were no longer any protesters to whom the City could issue CTNs. But there is

no evidence in the record supporting the district court’s conclusion that the

“policy was no longer in effect” or that the City no longer had legal authority

to issue CTNs. Tellingly, at oral argument, the City would not concede that the

curfew and reservation policies repealed or amended the CTN policy or that

these new policies halted enforcement of CTNs that had already been issued.

In short, the district court’s finding that the CTN policy was no longer in effect

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was clearly erroneous, and it was also an abuse of discretion to deny fees on

that basis.

III. Calculation of Award

Finally, although the district court abused its discretion in awarding

zero fees based on Appellants’ degree of success, the district court nevertheless

retains discretion to consider that factor when setting a reasonable fee amount.

Farrar, 506 U.S. at 114. Because the district court did not conduct any analysis

or make any findings as to the reasonableness of Appellants’ fee request, 9 we

remand this case to the district court with directions to award attorneys’ fees,

in the first instance, consistent with this court’s criteria. See Aware Woman

Clinic, Inc. v. City of Cocoa Beach, Fla., 629 F.2d 1146, 1150 (5th Cir. 1980)

(per curiam); see also Jimenez v. Wood Cnty., Tex., 621 F.3d 372, 379–80 (5th

Cir. 2010) (articulating a two-step process for determining a fee award under

§ 1988). On remand, we further direct the district court to award Appellants

their costs and attorneys’ fees incurred in successfully prosecuting this appeal.

See Aware Woman Clinic, 629 F.2d at 1150 (“Although we have discretion to

award costs and fees arising out of an appeal to this court, considerations of

judicial economy call for the district court to determine the total award in this

case.”).

CONCLUSION

For the foregoing reasons, we REVERSE the district court’s denial of fees

and REMAND to the district court to make the requisite findings in the first

instance.

9 Appellants sought fees in the amount of $318,879.00, costs in the amount of

$3,951.20, and expenses in the amount of $3,231.21. The City did not object to the costs.

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