JOEL F. DUBINA, Chief Judge.
The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), the Suggestion of Rehearing En Banc is DENIED.
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 case 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
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.
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.
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:
We take this opportunity to sharpen up that explanation. As we stated in our opinion, only two of the sixty-two citations to the
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.
WILSON, Circuit Judge, dissenting:
This case concerns an award of attorney's fees to a plaintiff who prevailed under 42 U.S.C. § 1988. A panel of this Court set aside the fee, concluding that the district court abused its discretion by committing an error of law. The full Court voted to deny rehearing the case en banc. For three reasons, I dissent from the denial of rehearing en banc. First, the district court committed no error of law sufficient to warrant this Court's finding that it abused its discretion in awarding attorney's fees to the plaintiff. The award fell well within the boundaries of the district court's discretion, and the plaintiff's lawyers fairly earned their attorney's fees when the plaintiff prevailed on a significant legal issue of first impression. Second, the panel's opinion stretches Supreme Court precedent too far. In doing so, the Court too drastically constrains the district court's broad discretionary authority to grant attorney's fees to a nominal-damages plaintiff whose success in this litigation serves an important public purpose. And finally, our Court should take great caution when reaching a decision that is likely to deter attorneys from taking civil rights cases that may affirm or further define constitutional rights.
The facts, briefly stated, are as follows.
Gray's mother subsequently filed suit on her behalf, alleging a violation of Gray's Fourth Amendment right to be free from unreasonable seizures. Gray ultimately prevailed on her claim under 42 U.S.C. § 1983, although the jury awarded her only $1 in nominal damages. Gray filed a motion for attorney's fees and expenses, seeking $78,390.00; Bostic filed no response. The district court performed a lodestar analysis and awarded Gray $70,532.93 in attorney's fees.
This Court then held that the district court abused its discretion when deciding to award attorney's fees, and remanded the case back to the district court to determine "whether the plaintiff is entitled to an award of attorney's fees and expenses . . . even though she recovered only nominal damages,"
The panel's opinion mistakenly concludes that, as a result of that supposed deficiency, the district court did not properly apply the principles announced in Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 574 (1992). See Gray IV, 613 F.3d at 1042-1043. In reaching its conclusion, the opinion disagrees with the way in which the district court articulated its reasoning, but fails to recognize that the district court ultimately applied Farrar's holding: the degree of a plaintiff's success is critical to the reasonableness of an award.
After deciding that the district court committed an error of law in its citation counting, the panel's opinion points to other aspects of the district court's decision that it found "troubling." Gray IV, 613 F.3d at 1042-43. First, the panel's opinion asserts that the district court "blaz[ed] new trails" by stating that civil rights cases are undesirable because they have to be taken on a contingency basis. Gray IV, 613 F.3d at 1042-43. Additionally, the opinion cynically states that the district court's decision to award fees may have been an "end-run around the jury's nominal damages award." Id. at 1043. I believe the panel's opinion misconstrues the statements of the district court, and, in effect, overlooks the significant reasons upon which the district court relied when awarding attorney's fees.
I believe the full Court should have reheard this case en banc to decide: (1) whether Gray's award of attorney's fees accords with the principles announced in Farrar, in light of the fact that she prevailed on a significant legal issue that accomplished an important public purpose; (2) whether the panel's opinion applies Farrar too broadly, as that opinion is limited in both the narrow legal principal it espouses and its distinct factual context; and (3) whether, under the principles of Farrar, the district court abused its discretion by failing to adequately explain its reasons for finding Gray's suit to be successful beyond her recovery of nominal damages.
TheCourt stated in Gray IV that the district court's supposed error of law "requires us to vacate the [district] court's order awarding the plaintiff fees . . . ." Gray IV, 613 F.3d at 1042 (emphasis added). In doing so, the Court substituted its own discretion for that of the district court, neglecting to credit the fact that the district court properly applied Farrar when it analyzed the overall success of Gray's lawsuit.
"Determining a `reasonable attorney's fee' is a matter that is committed to the sound discretion of a trial judge . . . ." Perdue v. Kenny A. ex. rel. Winn, 130 S.Ct. 1662, 1676 (2010). Indeed, the Supreme Court has stressed that the highly deferential abuse-of-discretion standard remains paramount to our review of whether a district court awarded a "reasonable" fee. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941 (1983). "This is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Id. After all, only the district court judge "will have read all of the motions filed in the case, witnessed the proceedings, and been able to evaluate" the overall success of the lawsuit "in light of the objectives, context, legal difficulty, and practical obstacles present in the case." Perdue, 130 S. Ct. at 1679 (Breyer, J., dissenting). Therefore, when applying the abuse-of-discretion standard, we must recognize that "[w]hen a district court has discretion, there are usually a range of choices it may make and still be affirmed; there is not only one right choice for the court to make." Blasland, Bouck & Lee, Inc. v. City of N. Miami, 283 F.3d 1286, 1298 (11th Cir. 2002). Although an award of attorney's fees is left to the district court's discretion, the court must "provide a concise but clear explanation of its reasons for the fee award." Hensley, 461 U.S. at 437, 103 S. Ct. at 1941.
The district court properly exercised its discretion when it justified its fee award by noting: (1) the legal acumen of plaintiff's attorneys when they ultimately prevailed, despite the district court's initial dismissal of the action; (2) Gray's success even though she faced a vigorous defense "on every hand and at every stage in this litigation;" (3) the concrete public benefit provided by Gray II, as demonstrated by its use in future lawsuits; (4) its determination that the jury's award of nominal damages was unsupported by the weight of the evidence, reflecting the district court's estimation that Gray's success exceeded her monetary recovery; (5) a recognition that in areas of police misconduct—where injunctive relief often is unavailable—success cannot be measured simply based on monetary recovery; and (6) the undesirability of civil rights cases. Gray v. Bostic, N.D. Ala. 2008 (No. 7:03-cv-2989-UWC, July 29, 2008).
The Court's primary basis for vacating the district court's attorney's fee award was its belief that the district court committed an "error of law" by relying on the fact that the decision in Gray II has "already been cited in more than 50 other cases." Id. Paragraph 10 of the district court's Findings of Fact and Conclusions of Law (attached as an Appendix) states:
Id. The Court asserts that the district judge's "count was grossly over-inclusive and greatly exaggerated the effect of the Gray II holding" since there were, at that time, only two decisions citing Gray II for the point of substantive law upon which Gray prevailed.
Despite this Court's conclusion to the contrary, there was no error of law so significant as to warrant a finding of abuse of discretion. First, the district judge did not state that Gray II was cited in more than 50 other cases for the principle of law that the plaintiff prevailed on; nor would such an erroneous assumption have been essential to its conclusion. The district court's order has a single sentence mentioning citations: "[t]he most important of [Gray's appeals], handed down just two years ago, has already been cited in more than fifty other cases." Gray v. Bostic, N.D. Ala. 2008 (No. 7:03-cv-2989-UWC, July 29, 2008) (citations and footnotes omitted). Based on that sentence, the above concurrence concludes that "the district court counted all sixty-two citations as though they were in Fourth Amendment cases ruling in favor of the plaintiffs based on
Second, and more importantly, the panel's opinion neglects to give due weight to the district court's consideration of the cases citing Gray II that do fully illustrate Gray II's significance. Remanding the case to the district court so that it can determine how much weight to give these citations, in my view, is a colossal waste of judicial resources. In Moretta v. Abbott, 280 F. App'x 823, 825 (11th Cir. 2008) (per curiam), it is obvious that we relied on Gray II when further delineating the Fourth Amendment rights of school children. There, police officers shocked Isiah Allen, a 6-year-old, 53-pound child, with 50,000 volts of electricity, causing him to convulse violently. Id. at 824. The officers then handcuffed Allen while he vomited. Id. Much like Gray, "Allen posed no threat to anyone's safety, including himself." Id. at 825 (quotation omitted). Thus, we concluded, "[t]he conduct at issue here lies so obviously at the very core of what the Fourth Amendment prohibits, that the unlawfulness of the conduct was readily apparent to an official in the shoes of these officers." Id. at 825 (citing, inter alia, Gray II, 458 F.3d at 1306-07).
Additionally, in T.S. v. State, 863 N.E.2d 362, 372 (Ind. App. 2007), the court cited Gray II for the proposition that a school officer who restrains a student's movement "seizes" the student under the meaning of the Fourth Amendment. See also Jordan v. Blackwell, M.D. Ga. 2008 (No. 5:06-cv-214 (HL), Sept. 29, 2008) (citing Gray II when discussing the use of force by school resource officers against children in the school setting).
These cases demonstrate the significant effect that Gray's suit already has had in affirming students' Fourth Amendment rights in schools. By attacking the manner in which the district court articulated its reasons for Gray's success, the panel's opinion ignores the district court's essential point—that Gray's case has already provided a concrete public benefit for school children who were subjected to Fourth Amendment violations. While the above concurrence insists that the opinion does nothing more than state that the district court committed a narrow error of law, the panel's opinion goes much further than that, mangling the district court's order [attached] beyond recognition.
Aside from the citation-counting issue, the panel opinion also criticized the district court's statements that (1) the jury's verdict awarding $1 was considerably unsupported by the evidence and (2) that the court would have granted a motion for new trial if one had been brought before it. Gray IV, 613 F.3d at 1043. The opinion noted that these may indicate "something of an end-run around the jury's nominal damages award." Id. On the contrary, the statements reflect the district court's evaluation of the extent of Gray's success and its conclusion that a fee award would not be a "windfall" to her attorneys. Accord City of Riverside v. Rivera, 477 U.S. 561, 580, 106 S.Ct. 2686, 2697 (1986) (plurality opinion) (noting that § 1988 is not intended to provide windfalls to attorneys). After seeing the case from the complaint phase to the jury verdict, and after hearing all of the evidence concerning Gray's injuries and Bostic's conduct, the district court was in the best position to determine the extent of the plaintiff's success. Moreover, these statements, placed in a footnote, do not appear to weigh heavily in the district court's overall evaluation of Gray's success.
The district court gave reasoned consideration to the "overall success" of Gray's suit, success that was not readily reducible to a sum of money. See Farrar, 506 U.S. at 114, 113 S. Ct. at 574 (internal quotation marks omitted). As Part II below will demonstrate, the district court's reasoning comports with the principles announced in Farrar; Gray was an unlikely prevailing party on a significant legal issue that served an important public goal. Regardless of whether this Court would have come out differently if it were to step into the shoes of the district court and conduct its own review, we are constrained in this instance and should defer to the district court's discretion in determining that Gray's successful lawsuit warranted an award of attorney's fees.
A thorough analysis of this case reveals that Gray should be entitled to attorney's fees because the "indicia of success" weigh in favor of the award. See Farrar, 506 U.S. at 120-22, 113 S. Ct. at 578-79 (O'Connor, J., concurring).
Fee-shifting in § 1983 cases is governed by 42 U.S.C. § 1988(b), which permits a district court, at its own discretion, to award reasonable attorney's fees to the prevailing party in a civil rights suit. See Thompson v. Pharmacy Corp. of America, Inc., 334 F.3d 1242, 1244 (11th Cir. 2003). The Supreme Court has held that "a `reasonable' fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case." Perdue v. Kenny A. ex. rel. Winn, 130 S.Ct. 1662, 1672 (2010) (citation omitted). And in Farrar, the Supreme Court held that a plaintiff who receives nominal damages is a "prevailing party" eligible to receive attorney's fees. 506 U.S. at 112, 113 S. Ct. at 573. The Court, however, affirmed the denial of attorney's fees in Farrar because it was "readily apparent" that the plaintiff's victory was purely technical or de minimis. Id. at 120, 113 S. Ct. at 578 (O'Connor, J., concurring).
Although the Supreme Court noted that when a plaintiff recovers nominal damages, "the only reasonable fee is usually no fee at all," id. at 115, 113 S. Ct. at 575 (emphasis added), the opinion merely reiterated what had already been clear: the degree of a plaintiff's success is the "`most critical'" factor in determining the reasonableness of fees. Id. at 114, 113 S. Ct. at 574 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 1941 (1983)). The Court did not purport to establish a bright-line rule that an award of attorney's fees in a nominal-damages case necessarily constitutes an abuse of discretion. Rather, Farrar instructs district courts to consider the low monetary recovery inherent in a nominal-damages case as one factor in the extent of success of a civil rights lawsuit. See Riverside, 477 U.S. at 574, 106 S. Ct. at 2694 (citation and quotations omitted) ("The amount of damages a plaintiff recovers is certainly relevant to the amount of attorney's fees to be awarded under § 1988. It is, however, only one of many factors that a court should consider . . . ."). "Reasonableness,"—not simply whether the plaintiff recovered nominal damages, at the exclusion of other considerations—remains the touchstone of the inquiry.
Justice O'Connor's concurrence, which represents the law of our Circuit, stresses that "nominal relief does not necessarily a nominal victory make." Farrar, 506 U.S. at 121, 113 S. Ct. at 578 (O'Connor, J., concurring). Rather, "an award of nominal damages can represent a victory in the sense of vindicating rights even though no actual damages are proved." Id. (citation omitted); see also Riverside, 477 U.S. at 574, 106 S. Ct. at 2694 ("Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal . . . damages awards.").
Justice O'Connor lists three "indicia of success" that should be considered when assessing whether a nominal-damages plaintiff achieved a purely "technical" or "de minimis" victory: (1) "the significance of the legal issue on which the plaintiff claims to have prevailed," (2) whether the suit "accomplished some public goal," and (3) "[t]he difference between the amount recovered and the damages sought."
The panel's opinion attempts to overstretch Farrar, the facts of which bear little resemblance to the facts of this case. In Farrar, no factor came close to weighing in favor of the plaintiff, see Farrar, 506 U.S. at 122, 113 S. Ct. at 679 (O'Connor, J., concurring);
Applying the factors set forth by Justice O'Connor to this case yields results very different from the outcome of Farrar. First, the holding of Gray II helps to delineate the boundaries of appropriate conduct for school and law enforcement officials in schools. Second, Gray's suit serves an important public purpose because it will deter future Fourth Amendment violations by school officials; in fact, the case has already been used to hold school officials accountable for unreasonable searches and seizures. Third, the difference between the amount of damages sought compared to those received was not nearly as dramatic as in Farrar.
Although this Court has not engaged in extensive discussion to define "significant legal issue" in this context, other circuits have interpreted this prong of Justice O'Connor's inquiry in two ways. Some define the "significance of the legal issue" prong by going beyond a focus on actual relief obtained to examine the extent to which the plaintiff succeeded on her theory of liability. See Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1231 (10th Cir. 2001).
Applying the first definition, Gray prevailed against the one defendant at trial
Under the second approach, a plaintiff has prevailed on a "significant legal issue" where she has vindicated important constitutional rights
Gray succeeded on a significant legal issue because (1) she vindicated an important constitutional principle, the Fourth Amendment right of a child to be free from unreasonable seizures; (2) her case presented an issue of first impression and is the first in our Circuit to deny qualified immunity in the schoolhouse Fourth Amendment context, further defining the contours of "reasonableness" for school and law enforcement officials in schools; and (3) she prevailed where others had failed, by proving that her Fourth Amendment rights, in the school context, were violated and that this violation was clearly established.
Gray's "case was important in that it marked a milestone in the development of the law" concerning the Fourth Amendment rights of children in schools. Mercer, 401 F.3d at 207. In New Jersey v. T.L.O, 469 U.S. 325, 105 S.Ct. 733 (1985), the Supreme Court held that searches by school officials are subject to a "Fourth Amendment standard of reasonableness that stops short of probable cause." Id. at 325, id. at 742. Thus, a school search is "permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Id. at 342, 105 S. Ct. at 743 (footnote omitted).
Applying the T.L.O. test, Gray II further defines and clarifies what type of conduct (i.e., handcuffing a child who poses no safety threat) is excessively intrusive in light of the age and sex of a child (here, a 9-year-old girl). 458 F.3d at 1306. We have noted that "[s]pecific application of [the T.L.O.] factors . . . is notably absent from the [T.L.O.] Court's discussion and conclusion." Jenkins v. Talladega City Bd. of Ed., 115 F.3d 821, 825 (11th Cir. 1997) (en banc). Gray II offers a specific application, denying immunity to a school resource officer who used force as a disciplinary measure against a nine-year-old girl who posed no safety threat.
Significantly, Gray's victory represents the first case in our Circuit to deny qualified immunity to a school official on a Fourth Amendment claim. Gray was able to overcome T.L.O. `s permissive standard of "reasonableness" (rather than "probable cause") and then prove that Deputy Bostic's violation was clearly established. We have held that "where the applicable legal standard is a highly general one, such as `reasonableness,' preexisting case law that has applied general law to specific circumstances will almost always be necessary to draw a line that is capable of giving fair and clear notice that an official's conduct will violate federal law." Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 954 (11th Cir. 2003) (citation omitted). It is a "rare occasion" that a Fourth Amendment constitutional violation is "obvious." Gray II, 458 F.3d at 1307 (citations omitted). But in Gray II, this Court held that Deputy Bostic's conduct was a clearly established violation because it was "obvious." 458 F.3d at 1307. Thus, the case offers guidance for evaluating "reasonableness" in the context of future Fourth Amendment claims, putting school officials on notice of what conduct violates a child's Fourth Amendment rights.
Gray's success is even more remarkable in light of other plaintiffs' lack of success in litigation in the context of unreasonable searches and seizures within schools. In the two prior cases dealing with qualified immunity in the school context, we found that "strip searches" of students undertaken to find stolen money were not clearly established violations of the Fourth Amendment. Thomas, 323 F.3d at 952, 956 (granting qualified immunity to a teacher and police officer who strip-searched a fifth-grade group to find a missing $26, because, although the search constituted a violation, it was not "clearly established"); Jenkins, 115 F.3d at 822-23, 828 (granting, en banc, qualified immunity to school officials who strip-searched two 8-year-old elementary students to find $7 stolen from a classmate, on the grounds that there was no clearly established violation).
The preceding discussion reveals that a plaintiff seeking to vindicate her Fourth Amendment rights in the school setting must overcome two significant hurdles: (1) the plaintiff must first show that the actions taken by school officials were unreasonable and (2) to avoid dismissal on qualified immunity grounds, she must further demonstrate that the defendants violated clearly established law. Gray did both. The district court underscored her success with regard to these standards when it stated that it initially had denied the plaintiff's claim on qualified immunity grounds.
While the panel's opinion minimizes Gray's legal victory as a "fairly narrow one," Gray IV, 613 F.3d at 1041, it neglects to acknowledge that the importance of the legal issue. Gray II makes up part of a broader discussion, currently in a state of flux, about the boundaries of the relationship between students and school authority figures who are charged with securing their safety and providing them with a crime-free learning environment. The Supreme Court recently considered the Fourth Amendment rights of schoolchildren in Safford Unified School District No. 1 v. Redding, 129 S.Ct. 2633 (2009). There, school officials strip-searched Savana Redding to see whether she was concealing prescription drugs in her undergarments. Id. at 2638. The district court found "no Fourth Amendment violation, and a panel of the Ninth Circuit affirmed. A closely divided Circuit sitting en banc, however, reversed." Id. (internal citation omitted).
After granting certiorari, the Supreme Court held that although the strip search violated the Fourth Amendment, the school official who ordered the search was entitled to qualified immunity because it was questionable whether the right was clearly established. Id. at 2643-44. The Supreme Court quoted our en banc decision in Jenkins, 115 F.3d at 828, where we stated that T.L.O. is a "`series of abstractions, on the one hand, and a declaration of seeming deference to the judgments of school officials, on the other,' which made it impossible `to establish clearly the contours of a Fourth Amendment right . . . [in] the wide variety of possible school settings different from those involved in T.L.O.' itself." Safford, 129 S. Ct. at 2643.
The Supreme Court's recognition of the still-developing case law regarding the Fourth Amendment rights of schoolchildren, coupled with the acknowledgement of our Court that these rights are not clearly established, leads to the conclusion that Gray prevailed on a significant legal issue of notable public benefit and first impression. She affirmed a student's constitutional right to be free from obviously unreasonable seizures.
Rather than being yet another opinion granting qualified immunity, Gray's case serves as a bookend, delimiting the narrow range of clearly established unacceptable conduct for school officials. It helps distinguish reasonable from unreasonable seizures in the schoolhouse context, where the highly general standard of "reasonableness" often fails to define the contours of students' Fourth Amendment rights with clarity.
For the reasons set forth supra in section A, Gray II advances an important public purpose by deterring Fourth Amendment violations by school officials and vindicating important rights for children in the school setting. See Farrar, 506 U.S. at 121-22, 113 S. Ct. at 578-79 (O'Connor, J., concurring); Popham v. City of Kennesaw, 820 F.2d 1570, 1580 (11th Cir. 1987) (citation omitted) ("The affirmation of constitutional principles produces an undoubted public benefit that courts must consider in awarding attorneys' fees under Section 1988."); Davis, 936 F.2d at 1215 (concluding that "the success or failure" of a civil rights lawsuit cannot "be judged solely by the size of the jury verdict," because "[t]he deterrent effect of [a civil rights] lawsuit could well be as important as the monetary damages recovered"). Courts have concluded that a plaintiff advances a public goal where her suit deters future abuses, affirms an important constitutional principle, puts the defendant on notice that it must improve its conduct in the future, or actually provokes a change in the defendant's conduct.
As the district court noted when explaining its award of attorney's fees, in a case like Gray's that involves "individual police misconduct," a "deterrent effect is particularly evident [because] . . . injunctive relief generally is unavailable." Riverside, at 575, 106 S. Ct. at 2694; see also Davis, 936 F.2d at 1215. For instance, in Duckworth v. Whisenant, 97 F.3d 1393, 1395, 1400 (11th Cir. 1996) (per curiam), our Circuit found that the district court did not abuse its discretion in awarding attorney's fees of $162,209 against a sheriff's department on an excessive force claim, despite a $500 damage award. We held that we would "not endorse Defendants' efforts to undermine the significance of this litigation," because a finding that the sheriff's department tacitly condoned excessive force by their officers could "only inure to the benefit of those involved when redressing an officer's abuse of discretion which violates a person's constitutional rights." Id. at 1399. As a result, we deferred to the district court's discretion in declining to reduce the lodestar amount on the basis of Farrar. Id. at 1395.
Likewise, Gray's suit serves an important purpose, and unlike Farrar, one does not search "in vain for the public purpose" Gray's litigation has served. Farrar, 506 U.S. at 122, 113 S. Ct. at 578 (O'Connor, J., concurring). This case reminds school officials that while they have considerable freedom in maintaining school safety, they do not have unlimited discretion. As the district court noted, at every stage in this litigation, Deputy Bostic argued vigorously that his seizure of Gray was justified under either a reasonableness standard or a more heightened "arguable probable cause" standard. See, e.g., Gray v. Bostic, 11th Cir. 2004 (No. 04-12240, Dec. 27, 2004) (complaint stage); Gray II, 458 F.3d at 1300 (summary judgment stage); Gray v. Bostic, 264 Fed. App'x 856, 856 (11th Cir. 2008) (judgment as a matter of law stage). Our Court's finding to the contrary serves to deter not only Deputy Bostic but all school officials in this Circuit from violating the Fourth Amendment rights of students. Consequently, Gray's suit serves an important public purpose for all school children; it did not merely give Gray the "moral satisfaction of knowing that a federal court concluded that [her] rights had been violated in some unspecified way." Farrar, 506 U.S. at 114, 113 S. Ct. at 574 (quotation omitted).
By contrast, in Farrar, the Court searched in vain for the public purpose that plaintiff's litigation may have served, "other than occupying the time and energy of counsel, court, and client." Farrar, 506 U.S. at 121-22, 113 S. Ct. at 578 (O'Connor, J., concurring). No one could discern the lawless conduct that could be deterred in the future as a result of the suit, as the jury verdict was "regrettably obtuse," id. at 122, 113 S.Ct. 578-79, and reflected only that Farrar's rights were violated in "some unspecified way." Id. at 114, 113 S. Ct. at 574 (majority opinion) (quotation and citation omitted). Because his case "carrie[d] no discernable meaning," it had no prospect of benefitting anyone other than Farrar. Id. at 122, 113 S. Ct. at 579 (O'Connor, J., concurring) (citations omitted).
Gray's case clearly established that a school official cannot seize a child in the absence of any safety threat. By helping to define the boundaries of permissible and impermissible conduct for school officials, it serves a greater public purpose by deterring future abuses by such officials and has already aided in vindicating the rights of other children who have been subject to Fourth Amendment violations in their schools.
Further, the divergence between the amount of damages that Gray sought and what she received was not drastic. In Farrar, the plaintiff sought $17 million, and after 10 years of litigation, was awarded only $1 by the jury. The high damages Farrar sought indicated that money was the primary purpose of his action, and thus a low monetary recovery reflected a low degree of success. See Wilcox, 42 F.3d at 557 n.8.
Gray's case, however, was not simply about the money. At the close of a one-day jury trial, Gray's counsel argued that in a civil case like this one, all that a plaintiff could ask for was money (presumably because injunctive relief was not available), but that no dollar value could be placed on the injury that occurred to Gray as a result of Bostic's constitutional violation. Gray asked for a sum of $25,000, a far cry from Farrar's request for $17 million. Other courts have granted fee awards both where there were similar and more drastic splits. Compare Murray, 323 F.3d at 619 (upholding an award of attorney's fees, inter alia, because the disparity between the $500,000 in damages requested and the $1 received was not "an outrageous split"), and Brandau, 168 F.3d at 1182 (holding that the "difference between the judgment recovered and the recovery sought was significantly distinct from the corresponding difference in Farrar" where plaintiff sought backpay for twenty-one months and $50,000 in non-economic damages), and Lockhart, 29 F.3d at 424 (fees granted because, inter alia, the discrepancy between the amount of damages sought ($860,000) and amount recovered ($2) "pales in comparison to the discrepancy presented in Farrar"), with Romberg v. Nichols, 48 F.3d 453, 455 (9th Cir. 1995) (denying attorney's fees where plaintiff sought $16 million in damages from 8 defendants, but received only nominal damages), and Pino v. Locascio, 101 F.3d 235, 239 (2d Cir. 1996) (denying attorney's fees where plaintiff asked for $21 million and got $1). Viewed in light of these cases, the difference between the damages Gray sought and the relief she was awarded does not rise to the level of "outrageous."
Absent the dedication and efforts of Gray's attorneys, Gray's Fourth Amendment rights would not have been vindicated, nor could she have helped to uphold the Fourth Amendment rights of other schoolchildren in our Circuit. "Congress expressly recognized that a plaintiff who obtains relief in a civil rights lawsuit does so not for himself alone but also as a `private attorney general,' vindicating a policy that Congress considered of the highest importance." Riverside, 477 U.S. at 575, 106 S. Ct. at 2694 (citation omitted) (internal quotation marks omitted). As the Supreme Court has explained, "[u]nlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms." Id. at 574, 106 S. Ct. at 2694. Therefore, "Congress has determined that the public as a whole has an interest in the vindication of the rights conferred by [§ 1983], over and above the value of a civil rights remedy to a particular plaintiff." Id. (internal quotation marks omitted). Because it realized that contingency-fee arrangements did not provide sufficient incentives to lawyers to accept civil rights cases that often produced small monetary recoveries but great public benefit, Congress enacted § 1988. Id. at 577, 106 S. Ct. at 2695.
The Seventh Circuit has noted that if a small damages award is the reason for denying attorney's fees, then misconduct that is neither harmful enough to support a large compensatory award nor egregious enough to justify a punitive damages award is "as a practical matter, beyond the reach of the law" because would be impossible to attract a competent lawyer without an expectation of a fee award. Hyde v. Small, 123 F.3d 583, 585 (7th Cir. 1997). While cases such as Gray's may seem "narrow" in their reach, the Seventh Circuit stated that "the cumulative effect of petty violations of the Constitution arising out of the interactions between the police (and other public officers) and the citizenry on the values protected by the Constitution may not be petty . . . ." Id.; see also Koopman, 41 F.3d at 1421 ("Deterring meritorious lawsuits on constitutional issues because they offer a small likelihood of a significant money judgment presents as grave a danger to our legal system as frivolous litigation.").
Farrar reiterates the importance of a plaintiff's overall success in calculating an award of attorney's fees. The district court, with its intimate knowledge of Gray's suit, gave reasoned consideration to this issue. While this Court may not agree with the way in which the district court articulated its reasoning, the discretion due to the district court, combined with the actual significance of Gray's victory, requires that we defer to the district court's award of attorney's fees. No error of law exists to support a conclusion that the district court abused its discretion when awarding attorney's fees in this litigation.
Quite simply, "[i]n our legal system, with its reliance on stare decisis and respect for precedent, a case involving the claim of a single individual . . . can have a profound influence on the development of the law and on society." Mercer, 401 F.3d at 208. The district court properly recognized that Gray's success did not lie in a monetary award, but in affirming an important constitutional principle. It is not our place to substitute our own judgment.
Eschewing Defendant Antonio Bostic's position that Plaintiff Laquarius Gray is not entitled to an award of attorney's fees,
1. This action was commenced on November 4,2003, by the minor Plaintiff Laquarius Gray through his attorney, Gary P. Cody. Although the original thirty sixpage complaint named other defendants, the case has proceeded against Tuscaloosa County Deputy Sheriff Antonio Bostic and, to a significantly lesser extent, Sheriff Edmund Sexton.
2. At the conclusion of the evidence at trial, the Court granted judgment as a matter of law against Deputy Bostic. The jury returned nominal damages in the amount of $1.00, and plaintiff's counsel did not seek a new trial on damages.
3. In the Northern District of Alabama, an hourly range of $150.00 to S250.00 is the prevailing market rate for similar services performed by lawyers of reasonably comparable skills, experience, and reputation to those of attorneys Liveoak, Cody, Edge, Collins, and Boyles. An hourly range of $100.00 to $150.00 is the prevailing market rate in North Alabama for similar services performed by lawyers of reasonably comparable skills, experience, and reputation to those of attorney Peacock,
4. A reasonable hourly rate for plaintiff's attorneys Liveoak, Cody, Edge, Collins, and Boyles is $200.00.
5. Because of his relatively short time at the bar, a reasonable hourly rate for plaintiff's attorney Peacock is $125.00.
6. A total of 346.2 hours were reasonably expended by counsel in the prosecution of this case . The following counsel expended the hours indicated:
7. Gary Cody's law firm has reasonably incurred $562.93 in expenses directly related to the prosecution of this case.
8. The Collins, Liveoak & Boyles ("CL&B") law firm has reasonably incurred $1,180.00 in expenses directly related to the prosecution of this case.
9. The CL&B firm is not entitled to reimbursement for the services rendered by their secretaries in this case.
10. Over a five-year period, this case has been the subject of four appeals
11. Among the bar of the Northern District of Alabama, this case was an undesirable one. Because of the limited financial resources of the Plaintiff, the case could only be taken on a contingency basis. For completely understandable reasons,
12. The relationship between the Plaintiff and his counsel is limited to this case.
13. Although the Plaintiff received only $1.00 in nominal damages, as found earlier, the jury's damage award was considerably unsupported by the evidence. In its most recent expression in this case, the Eleventh Circuit affirmed this Court's grant of judgment as a matter of law to the Plaintiff: "we conclude that, viewing the evidence in the light most favorable to Deputy Bostic, he lacked even arguable probable cause to arrest Gray." (Doc. 116 at 5.)
14. Most of the legal work performed in this case relates to the claim against Deputy Bostic. The court finds that at least eighty-five percent (85%) of the legal services would have been required even if Sheriff Sexton had never been a party to the action.
15. Since the Plaintiff did not prevail on his claim against Sheriff Sexton, the hours to which his counsel would otherwise be entitled will be reduced by fifteen percent (15%).
16. plaintiff's counsel are entitled to a 15% enhancement for the delay in payment.
17. plaintiff's counsel are entitled to the following amounts of reasonable attorneys' fees and reimbursement of expenses:
Moreover, the CB&L firm is entitled to reimbursement of reasonable expenses in the amount of $1,180.
Gary Cody is entitled to payment for 20 hours at a $200.00 hourly rate, for a total of $4,000.00. He is also entitled to reimbursement for expenses in the amount of $562.93.
1. A prevailing party in an action brought under 41 U.S.C. § 1983 is entitled to a reasonable attorney's fee. 42 U.S.C. § 1988; Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). Plaintiff Gray is a prevailing party in this action.
2. In setting a reasonable attorney's fee, a district court is required to utilize the "lodestar approach," which is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Kenny A. v. Purdue et ai, Nos. 06-15514, 06-15874, 2008 WL 2609238, at *10 (11th Cir. July 3, 2008); Loranger v. Stierheim, 10 F.3d 776 (11th Cir.1994); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar is "the guiding light of our fee-shifting jurisprudence." City of Burlington v. Dague, 505 U.S. 557, 562 (1992). The lodestar incorporates all of the twelve factors enunciated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See also Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988).
3. "A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Norman, 836 F.2d at 1299. An hourly rate of $200.00 is reasonable for Plaintiff's attorneys Liveoak, Edge, Collins, Boyles, and Cody; and an hourly rate of $125.00 is reasonable for attorney Peacock.
4. In calculating the number of hours reasonably expended in the prosecution of the action, a court must exclude "excessive, redundant, or otherwise unnecessary hours." Hensley, 461 U.S. at 434. The Court has disallowed 14.5 hours as redundant.
5. In determining reasonable hours, a court must deduct time spent on discrete and unsuccessful claims. Norman, 836 F.2d at 1302. The Court has reduced by fifteen percent (15%) the reasonable hours expended by Plaintiff as time attributable to the discrete claims against Sheriff Sexton.
6. "It is improper [to reduce hours] based on a simple ratio of successful issues to issues raised. Id. "Where all theories derive from a common nucleus of operative facts, the focus should be on the significance of overall results as a function of total reasonable hours." Id. The hours for which plaintiff's counsel are being compensated all derive from a common nucleus of operative facts.
7. Where the documentation of claimed attorney hours is inadequate, "the court may make the award based on its own experience." Norman, 836 F.2d at 1303. The Court has based its conservative award of 20 hours to Gary Cody on its own expertise and experience.
In the area of police misconduct, where injunctive relief is generally unavailable to safeguard individual constitutional rights, a court should not reduce the prevailing attorney's hours simply because the monetary relief is paltry. Popham v. City ofKennesaw, 820 F.2d 1570, 1580 (11th Cir. 1987); City of Riverside v. Rivera, 474 U.S. 917 (1985); Norman, 836 F.2d at 1303.
8. A reasonable attorney's fee for the prevailing party should reflect the delay between the time the services were rendered and the payment for the services. While the Eleventh Circuit does not "prescribe any set method for correcting the delay in payment, ... some form of correction must be undertaken." Johnson v. Univ. Coll. of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1211 (11th Cir.1983). Generally courts in the Eleventh Circuit deal with the delay factor by compensating at current rates rather than at historic rates. Norman, 836 F.2d at 1302. However,
By separate order, the Court will grant the plaintiff's motion for reasonable attorneys' fees and reimbursement of expenses.
The decisions included in the group of sixty-two citing
The dissenting opinion also characterizes the district court's error as only a "supposed `error of law.'" Dissenting Op. at 3 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,"
