# Gray ex rel. Alexander v. Bostic

> Court of Appeals for the Eleventh Circuit · October 26, 2010 · 625 F.3d 692

URL: https://www.frixlaw.com/law-library/cases/8411798

## Case

- **Full name:** Laquarius GRAY, a minor, by and through her mother and next friend, Toniko L. Alexander v. Antonio BOSTIC, individually and in his official capacity as Deputy Sheriff for Tuscaloosa County, AL
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** October 26, 2010
- **Citations:** 625 F.3d 692; 2010 U.S. App. LEXIS 21987; 2010 WL 4226522
- **Precedential status:** Published
- **Opinion:** Concurrence by Carnes
- **Judges:** Barkett, Black, Carnes, Clemon, Dubina, Edmondson, Hull, Martin, Pryor, Tjoflat, Wilson
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8411798

## Opinion text

CARNES, Circuit Judge,
joined by BLACK, Circuit Judge,
concurring in the
denial of rehearing en banc:
The opinion dissenting from the denial of rehearing en banc addresses an issue that is not before this Court. The dissent addresses whether attorney’s fees ought to be awarded in this nominal damages case. Our decision, by contrast, addresses the entirely different issues of whether we ought to vacate the district court’s award of attorney’s fees because the court made errors of law in deciding whether to award fees, and whether we ought to remand the ease so that the district court can exercise its discretion free from the effect of those errors of law instead of exercising it ourselves.
No one disputes that the decision whether to award attorney’s fees in a case involving an award of only nominal damages is committed to the sound discretion of the district court, subject to the parameters laid out in Farrar v. Hobby, 506 U.S. 103 , 113 S.Ct. 566 , 121 L.Ed.2d 494 (1992), and related decisions. We said exactly that in our opinion for this Court. Gray ex rel. *693 Alexander v. Bostic, 613 F.3d 1035, 1039 (11th Cir.2010) (Gray TV). But as the Supreme Court instructed earlier this year, although attorney’s fees matters are “committed to the sound discretion of a trial judge ... the judge’s discretion is not unlimited.” Perdue v. Kenny A. ex rel. Winn, — U.S. -, 130 S.Ct. 1662, 1676 , 176 L.Ed.2d 494 (2010). And, just a month later the Court reminded us that: “Statutes vesting judges with such broad discretion are well known in the law, particularly in the attorney’s fees context. Equally well known, however, is the fact that a judge’s discretion is not unlimited.” Hardt v. Reliance Standard Life Ins. Co., — U.S. -, 130 S.Ct. 2149, 2158 , 176 L.Ed.2d 998 (2010) (citation and quotation marks omitted). We also said that in our opinion. Gray IV, 613 F.3d at 1039 .
As equally well established as those principles are two more. The first one is that when a district court commits an error of law in deciding how to exercise its discretion, that court has, by definition, abused its discretion. United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.2003) (“ ‘A district court by definition abuses its discretion when it makes an error of law.’ ” (quoting Koon v. United States, 518 U.S. 81, 100 , 116 S.Ct. 2035, 2047 (1996))); accord Young v. New Process Steel, LP, 419 F.3d 1201, 1203 (11th Cir.2005) (“[A] ruling based on an error of law is an abuse of discretion.”); United States v. Hall, 349 F.3d 1320, 1323 (11th Cir.2003) (“[I]f the refusal [to give a requested jury instruction] was based on an error of law, then it is by definition an abuse of discretion.”).
The second additional principle is that if a district court has abused its discretion, the court of appeals should not decide how to exercise the district court’s discretion; instead, it should remand the matter so that the district court can exercise its discretion free from the error of law. See Mobley v. Head, 306 F.3d 1096, 1097 (11th Cir.2002) (“[I]f the dissent were right that the district court misread Felker, then under Collins we would be required to remand; we would not be free to affirm by substituting for the district court’s discretion our conjecture that it would have reached the same result had it been guided by a proper view of the law.”); Collins v. Seaboard Coastline R.R. Co., 681 F.2d 1333, 1335 (11th Cir.1982) (“A discretionary decision that falls within permitted bounds, but is based on false premises, raises the question on review as to whether the trial court would have come to the same conclusion using proper premises. That it could have does not satisfy the inquiry as to whether it would have reached the same result. The affirmance of a discretionary decision that is based on an improper view of the facts or the law merely reflects the appellate court’s exercise of discretion that rightfully belongs to the trial court.”); Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322 , 1325 (11th Cir.1996) (explaining that because the abuse of discretion standard allows a range of choice for the district court, the case was being remanded to the district court to give it the first opportunity to decide the issue under the correct legal standard). 1
*694 These principles leave as a point of disagreement between our opinion for the Court and the dissenting opinion only the issue of whether the district court in deciding whether to award attorney’s fees in this nominal damages case committed an error of law. It clearly did. For the convenience of the reader, we set out our explanation of how the district court’s citation-count approach amounted to legal error:
The district court, in deciding that an award of fees and expenses was warranted notwithstanding the nominal amount of damages, relied on the fact that the one published opinion to have come out of this litigation, our decision in Gray II [Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1300 (11th Cir.2006)]; see also id. at 1301 , had been “cited in more than fifty other cases” during the two years between its issuance on August 7, 2006 and the district court’s order awarding fees on July 29, 2008. In measuring “the significance of the legal issue on which the plaintiff prevailed” or “the public purpose served,” Farrar, 506 U.S. at 121-22 , 113 S.Ct. at 578-79 (O’Connor, J., concurring), by totaling up the number of times that our Gray II decision had been cited, the district court misapplied the law and overstated the impact of that decision.
During the two-year period considered by the district court, our decision in Gray II had been cited, by our count, in sixty-four decisions, which is certainly “more than fifty other cases.” But only two of those sixty four decisions cited Gray II for the point of substantive law that this plaintiff prevailed on. See Moretta v. Abbott, 280 Fed.Appx. 823 , 825 (11th Cir.2008) (unpublished) (citing Gray II in support of proposition that the unlawfulness of tasering a six-year-old who was passively standing in the corner of elementary school principal’s office “was readily apparent to an official in the shoes of these officers”); T.S. v. State, 863 N.E.2d 362, 372 (Ind.Ct.App.2007) (citing Gray II and two other decisions for the proposition that “a security or school officer who compels or restrains a student’s movement seizes the student for Fourth Amendment purposes”). The substantive point of law underlying the plaintiffs victory in Gray II is the fairly narrow one that a law enforcement officer, acting as a school resource officer, who “handcuff[s] a compliant nine-year-old child for purely punitive purposes” has unreasonably seized the child in violation of the Fourth Amendment. See Gray II, 458 F.3d at 1307 . Narrow or not, the nature of that point of law is not the problem with the district court’s citation-head-counting method for determining its significance. The problem is that the court’s count was grossly overinclusive and greatly exaggerated the effect of that Gray II holding.
Sixty-two of the sixty-four citations to Gray II do not evidence “the significance of the legal issue on which the plaintiff prevailed” or “the public purpose served,” but instead cite the decision for some point of law unrelated to its Fourth Amendment holding. For example, some of those other decisions cite *695 Gray II for general principles of law that were already well established, such as those dealing with our interlocutory jurisdiction over appeals from motions for summary judgment based on qualified immunity. See, e.g., Bates v. Harvey, 518 F.3d 1233, 1239 (11th Cir.2008). The plaintiff in this case cannot claim credit for that principle of law and probably would not want to do so even if she could. Some of the other of those sixty-two decisions actually cite Gray II for holdings on issues and claims that the plaintiff lost. For example, some of them cite the part of the decision applying the principle that a defendant cannot be held liable under § 1983 based on a theory of respondeat superior or on the basis of vicarious liability, Gray II, 458 F.3d at 1308 (“Supervisory officials cannot be held liable under § 1983 for the unconstitutional actions of their subordinates based on respondeat superior liability.”). See Turner v. Marshall. No. 2:05-CV-983, 2008 WL 2559391 , at *4-5 (M.D.Ala. June 24, 2008).
It was an error of laiv for the district court to conclude that simply because Gray II had been cited more than fifty times during a two-year period, the substantive issue on which the plaintiff prevailed must be significant and the public purpose served by her victory must be substantial. That error of law requires us to vacate the court’s order awarding the plaintiff fees and expenses and to remand for additional proceedings free from the error. If the district court on remand chooses to do a headcount of citations to our Gray II decision, it should survey all of the citations up to the time of its decision on remand, but it should count only those that cite the Gray II decision for its Fourth Amendment holding. Citations of the decision for humdrum, non-controversial, or long-established points of law do not matter and must not be included in the tabulation.
We do not mean to imply that citation-counting should be the sole or even the primary means of determining the impact that a decision has had, or that it is even necessary to use that means. Indeed, in any case where the fee decision follows soon after a judgment of liability, which is what will usually happen, counting citations will not be possible. Our holding is limited to what counts and what does not when citation-counting is used as a method for assessing the significance of a decision in the plaintiffs favor.
Gray IV, 613 F.3d at 1041-42 (emphasis added) (footnote omitted).
We take this opportunity to sharpen up that explanation. As we stated in our opinion, only two of the sixty-two citations to the Gray II decision that the district court considered as establishing the importance of the Fourth Amendment holding in the plaintiffs case actually cited the decision for its Fourth Amendment holding in the plaintiffs favor. Only two, yet in assessing “the significance of the legal issue on which the plaintiff prevailed” and “the public purpose served,” Farrar, 506 U.S. at 121-22 , 113 S.Ct. at 578-79 (O’Connor, J., concurring), the district court counted all sixty-two citations as though they were in Fourth Amendment cases ruling in favor of the plaintiffs based on Gray II. That is bad enough, but even worse is the fact that at least thirty-four of the citing decisions the district court counted in the plaintiffs favor actually cited the decision in her case on the points she lost and against the plaintiffs in those other eases. 2 *696 In other words, at least seventeen times as many of the citations to Gray II were for holdings against the plaintiff as were for the holdings in her favor, yet the district court counted them all as though they were citations to the Fourth Amendment holding in her favor. When a plaintiffs efforts result in a decision that is cited for holdings that were against her and are contrary to the position of plaintiffs in civil rights cases, those citations do not establish the significance of the legal issue on *697 which the plaintiff prevailed. They should not be counted in favor of the plaintiff when it comes to deciding whether she is entitled to attorney’s fees. Yet that is exactly what the district court did, and that is exactly what the dissenting opinion defends. And that is an error of law. 3
Our opinion for the Court also points out two other troubling aspects of the district court’s reasoning in deciding whether to award attorney’s fees in this case. See Gray IV, 613 F.3d at 1042-43 . Our opinion did not decide, and we need not address now, whether those other two problems with the district court’s reasoning also amounted to errors of law that would require us to vacate the award of fees if the citation-counting error had not occurred. Just as one bad ingredient can spoil a stew, one error of law can spoil an order. And in this case it did. The dissent would have us cook up a new order ourselves, but we will leave the do-over to the district court.
. The application of the principle that an error of law committed by the district court in awarding fees does not entitle the court of appeals to exercise the district court’s discretion should be especially obvious in a case like this one, where the fee award has to be vacated and the case returned to the district court anyway because it committed errors of law in calculating the amount of fees to be awarded. As we explained in our opinion, assuming that a fee award is to be made in this case, the district court committed errors in calculating the amount of a reasonable fee. See Gray IV, 613 F.3d at 1043-46 .
The dissenting opinion does not dispute that the district court did err in that respect, *694 so everyone agrees that the case has to go back for farther proceedings in any event. In light of that, the dissenting opinion's statement that remanding the case to the district court is "a colossal waste of judicial resources,” Dissenting Op. at 701, is puzzling. Ensuring that discretionary decisions are made, and are made free from legal error, by the court that the law charges with the responsibility for making them is anything but a waste of judicial resources.
. The plaintiff actually lost on most of her claims or requests for relief. She lost on her *696 official claim against the sheriff, on her individual claim against the sheriff, and on her request for injunctive relief. See Gray II, 458 F.3d at 1307-10 .
The decisions included in the group of sixty-two citing Gray II that the district court counted in plaintiff's favor but that actually cited Gray II for holdings against the plaintiff include the following: Simon v. Georgia, No. 07-14208, 282 Fed.Appx. 739, 740 (11th Cir. June 16, 2008) (unpublished); Sumner v. Glover, No. 1:05-CV-1201-WKW, 2008 WL 2873672 , at *6 (M.D.Ala. July 23, 2008) (unpublished); Turner v. Marshall, No. 2:05-CV-983-ID, 2008 WL 2559391 , at *4-5 (M.D. Ala. Jun. 24, 2008) (unpublished); McClain v. Riley, No. 2:05-cv-943-WKW, 2008 WL 2439096 , at *8 (M.D.Ala. June 13, 2008) (unpublished); Foy v. Riley, No. 2:05-cv-0946-MEF, 2008 WL 2278183 , at *8 (M.D.Ala. May 30, 2008) (unpublished); Stanley v. United States, No. 5:06cv81/MCR/EMT, 2008 WL 2323893 , at *9 (N.D.Fla. May 30, 2008) (unpublished); McGough v. Marion County. No. 5:06-cv-364-Oc-10GRJ, 2008 WL 2073907 , at *11 (M.D.Fla. May 14, 2008) (unpublished); Shaw v. Marshall, No. 2:07cv606-ID, 2008 WL 1924992 , at *6 (M.D.Ala. Apr. 9, 2008) (unpublished); O'Bryant v. Langford, No. 5:05cv131-RS/EMT, 2008 WL 906741 , at *6 (N.D.Fla. Apr. 3, 2008) (unpublished); Brothers v. Prison Health Servs., Inc., No. 2:06cv168-MHT, 2008 WL 724949 , at *5 (M.D.Ala. Mar. 17, 2008) (unpublished); Jackson v. Ellis, No. 3:07cv67/LAC/EMT, 2008 WL 89861 , at *6 (N.D. Fla. Jan. 7, 2008) (unpublished); Cooper v. Sexton, No. 5:07cv 108/RS/EMT, 2007 WL 3132667 , at *4 (N.D.Fla. Oct. 25, 2007) (unpublished); Middleton v. Andem, No. 5:07cv207/RS-EMT, 2007 WL 3011057 , at *2 (N.D.Fla. Oct. 15, 2007) (unpublished); Marshall v. Harry, No. 2:06-cv-17-FtM-29DNF, 2007 WL 2892023 , at *3 (M.D.Fla. Sept. 28, 2007) (unpublished); Larry v. McKeithen, No. 5:07cv114/RS/EMT, 2007 WL 2883830 , at *2 (N.D.Fla. Sept. 28, 2007) (unpublished); Watts v. Smith, No. 5:07cv 128/MCR/EMT, 2007 WL 2728392 , at *3 (N.D.Fla. Sept. 18, 2007) (unpublished); Apel v. Escambia County Jail, No. 3:07cv314/MCR/EMT, 2007 WL 2728372 , at *3 (N.D.Fla. Sept. 17, 2007) (unpublished); Watts v. Smith, No. 5:07cv128/MCR/EMT, 2007 WL 2462012 , at *2 (N.D.Fla. Aug. 28, 2007) (unpublished); Layne v. McDonough, No. 3:07cv 108/LAC/EMT, 2007 WL 2254959 , at *2 (N.D.Fla. Aug. 6, 2007) (unpublished); Watts v. Smith, No. 5:07cv128/MCR/EMT, 2007 WL 2257601 , at *2 (N.D.Fla. Aug. 6, 2007) (unpublished); Owens v. DeLoach, No. 2:05-cv-0287-MEF, 2007 WL 2069850 , at *4 (M.D.Ala. July 17, 2007) (unpublished); Odom v. Santa Rosa County Jail, No. 3:07cv267/RV/EMT, 2007 WL 2050319 , at *2 (N.D.Fla. July 12, 2007) (unpublished); Bonner v. Giles, No. 2:05-cv-0409-MEF, 2007 WL 1992082 , at *1 (M.D.Ala. July 5, 2007) (unpublished); Thompson v. Fed. Bureau of Prisons, No. 3:07cv163/LAC/EMT, 2007 WL 1526845 , at *2 (N.D.Fla. May 24, 2007) (unpublished); Bendross v. Hall, No. 5:07cv75/RS/EMT, 2007 WL 1521584 , at *4 (N.D.Fla. May 23, 2007) (unpublished); O’Bryant v. Langford, No. 5:05cv131/RS/EMT, 2007 WL 1490752 , at *5 (N.D.Fla. May 21, 2007) (unpublished); Hervy v. MicDonough, No. 5:07cv58/RS/EMT, 2007 WL 1482392 , at *2 (N.D.Fla. May 18, 2007) (unpublished); Lewis v. Escambia Cnty. Jail, No. 3:07cv178/RV/EMT, 2007 WL 1428727 , at *6 (N.D.Fla. May 14, 2007) (unpublished); Baird v. McDonough, No. 5:06cv250/MCR/EMT, 2007 WL 842161 , at *2 (N.D.Fla. Mar. 16, 2007) (unpublished); Anderson v. Rummel, No. 3:07cv45/RV/EMT, 2007 WL 788431 , at *3 (N.D.Fla. Mar. 14, 2007) (unpublished); Robinson v. Dep’t of Corrs., No. 3:07cv5/MCR/EMT, 2007 WL 624552 , at *2 (N.D.Fla. Feb. 23, 2007) (unpublished); Hall v. Santa Rosa Corr. Inst., No. 3:06cv351/RV/EMT, 2007 WL 474370 , at *5 (N.D.Fla. Feb. 9, 2007) (unpublished); Magee v. City of Daphne, No. 05-0633-WS-M, 2006 WL 3791971 , at *6, *7 n. 14, *9 n. 17, *11-12 (S.D.Ala. Dec. 20, 2006) (unpublished); Riddick v. Reiger, No. 2:03-cv-462-FtM-29SPC, 2006 WL 2644924 , at *5 (M.D.Fla. Sept. 14, 2006) (unpublished).
. The dissenting opinion asserts that the defendant’s brief to us did not contend that the district court erred in relying on citation counting, see Dissenting Op. at 698 n.2, but that brief did contend that “Gray’s case brought forth no issue of legal significance so as to leave any real precedent in civil rights law, nor did her 5 years of litigation accomplish any public purpose of note.” Brief of Appellant at 12. That contention encompasses the error the district court made in counting citations, including citations for points that were decided against the plaintiff. The error originated when the district court committed it, not thereafter.
The dissenting opinion also characterizes the district court’s error as only a "supposed 'error of law.’ ” Dissenting Op. at 698 n.2. That opinion, however, does not explain how it could be anything other than an actual, no-kidding, sure-enough error of law to include as establishing "the significance of the legal issue on which the plaintiff prevailed,” Farrar, 506 U.S. at 121-22 , 113 S.Ct. at 578-79 (O’Connor, J., concurring), citations to the Gray II decision on points that the plaintiff lost. That kind of reasoning — to borrow a verb and an adjective from the dissenting opinion — "mangles” logic and is a "colossal” error. Contrary to the dissenting opinion's assertion, Dissenting Op. at 701, we do not view this error as “narrow” one.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8411798. Public record. Not legal advice.