Filed: Jul. 11, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1629 STEVEN LEFEMINE, d/b/a Columbia Christians for Life, Plaintiff - Appellant, v. DAN WIDEMAN, individually and in his official capacity; MIKE FREDERICK, individually and in his official capacity; LONNIE SMITH, individually and in his official capacity; BRANDON STRICKLAND, individually and in his official capacity; SHERIFF TONY DAVIS, in his official capacity, Defendants – Appellees, and GREENWOOD COUNTY SHERIFF'S OFFICE, D
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1629 STEVEN LEFEMINE, d/b/a Columbia Christians for Life, Plaintiff - Appellant, v. DAN WIDEMAN, individually and in his official capacity; MIKE FREDERICK, individually and in his official capacity; LONNIE SMITH, individually and in his official capacity; BRANDON STRICKLAND, individually and in his official capacity; SHERIFF TONY DAVIS, in his official capacity, Defendants – Appellees, and GREENWOOD COUNTY SHERIFF'S OFFICE, De..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1629
STEVEN LEFEMINE, d/b/a Columbia Christians for Life,
Plaintiff - Appellant,
v.
DAN WIDEMAN, individually and in his official capacity; MIKE
FREDERICK, individually and in his official capacity; LONNIE
SMITH, individually and in his official capacity; BRANDON
STRICKLAND, individually and in his official capacity;
SHERIFF TONY DAVIS, in his official capacity,
Defendants – Appellees,
and
GREENWOOD COUNTY SHERIFF'S OFFICE,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., Senior
District Judge. (8:08-cv-03638-HMH)
Argued: March 19, 2014 Decided: July 11, 2014
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Reversed and remanded by published opinion. Judge Wynn wrote
the opinion, in which Judge Duncan and Judge Diaz joined.
ARGUED: Steven W. Fitschen, NATIONAL LEGAL FOUNDATION, Virginia
Beach, Virginia, for Appellant. Andrew Lindemann, DAVIDSON &
LINDEMANN, P.A., Columbia, South Carolina, for Appellees. ON
BRIEF: Robert D. Garfield, DAVIDSON & LINDEMANN, P.A., Columbia,
South Carolina, for Appellee Mike Frederick. Russell W. Harter,
Jr., CHAPMAN, HARTER & HARTER, P.A., Greenville, South Carolina,
for Appellees Dan Wideman, Lonnie Smith, Brandon Strickland, and
Tony Davis.
2
WYNN, Circuit Judge:
Plaintiffs who prevail in suits to vindicate civil rights
are entitled to attorneys’ fees unless special circumstances
make a fee award unjust.
Here, Plaintiff Steven C. Lefemine, leader of the Columbia
Christians for Life, successfully sued various Greenwood County
Sheriff’s Office officials for First Amendment violations. But
the district court deemed “(1) the Defendants’ qualified
immunity, (2) the absence of a policy or custom of
discrimination against abortion protestors by the Greenwood
County Sheriff’s Office, and (3) the limited nature of
[Lefemine’s] injunctive relief” to be special circumstances that
made the award of attorneys’ fees to Lefemine unjust. 1 We,
however, hold that the relief Lefemine obtained was notably
broader than the district court suggested and that the other two
circumstances are not “special” and do not render a Section 1988
fee award unjust. Accordingly, we reverse.
I.
In November 2005, Lefemine and other members of his group
Columbia Christians for Life demonstrated on a public sidewalk
at the busiest intersection in Greenwood County, South Carolina.
1
Lefemine v. Wideman, No. 8:08-3638-HMH, 2013 WL 1499152,
at *4 (D.S.C. Apr. 9, 2013).
3
Lefemine v. Wideman, No. 8:08-3638-HMH, 2013 WL 1499152, at *1
(D.S.C. Apr. 9, 2013). They held large signs with graphic
images of aborted fetuses hoping to “shock the consciences of
those who [saw] the signs” and thereby convey Columbia
Christians for Life’s anti-abortion message. Lefemine v.
Wideman,
672 F.3d 292, 296 (4th Cir.), vacated
133 S. Ct. 9
(2012).
Passers-by who saw the signs complained to the Greenwood
County Sheriff’s Office. For example, a mother who drove by the
signs with her five-year-old son reported to the Sheriff’s
Office that her son “was ‘screaming, crying’ after seeing the
signs.” Lefemine, 672 F.3d at 296.
In response, Lieutenant Randy Miles informed the Columbia
Christians for Life protestors that the Sheriff’s Office had
received “complaints about the graphic photographs” and that
“this was causing a disturbance in the traffic flow at th[e]
intersections.” Id. (quotation marks omitted). At the
direction of Chief Deputy Mike Frederick, Major Lonnie Smith
instructed Lefemine to take the signs down. Major Smith
explained that he would have “no other choice” but to ticket
Lefemine for breach of the peace if the protestors continued to
display the signs. Lefemine,
2013 WL 1499152, at *2. When
Lefemine asserted that this demand violated the First Amendment,
Major Smith responded: “You do not have a right to be offensive
4
to other people in that manner.” Id. Ultimately, the
protestors packed up the signs and left.
The following year, an attorney for the National Legal
Foundation sent a letter on behalf of Columbia Christians for
Life to Sheriff Dan Wideman. The letter informed Sheriff
Wideman that “volunteers will be returning to the Greenwood area
again in the near future to exercise their First Amendment
freedoms by highlighting the national tragedy of abortion.”
J.A. 219. The letter asserted that Major Smith’s actions the
previous year “constituted content-based discrimination” and “a
clear violation of its members’ First Amendment rights.” Id.
Finally, the letter warned that “any further interference with
[Columbia Christians for Life’s] message by you or your officers
will leave us no choice but to pursue all available legal
remedies without further notice.”
Id.
Chief Deputy Frederick responded on behalf of the Sheriff’s
Office. He stated that the Office’s actions the previous year
“were absolutely content-neutral, in that [Major Smith] was
enforcing existing roadway safety, public decency, and
maintenance of order statutes in order to protect the motoring
public from illegal and unwarranted distraction.” J.A. 225.
Chief Deputy Frederick declared that, faced with the same
circumstances again, the Sheriff’s Office would respond “in
exactly the same manner: order the person(s) to stop or face
5
criminal sanctions . . . .” Id. Yet, despite the threat of
“criminal sanctions[,]” Lefemine and Columbia Christians for
Life returned to the same area in November 2006 and again in
2007—and those protests took place without incident.
In October 2008, Lefemine filed a suit alleging First
Amendment violations and seeking a declaratory judgment, a
permanent injunction, damages, and attorneys’ fees. Following a
hearing on the parties’ cross-motions for summary judgment, the
district court held that the Officers had violated Lefemine’s
First Amendment rights and enjoined the Officers “from engaging
in content-based restrictions on [Lefemine’s] display of graphic
signs without narrowly tailoring [the] restriction to serve a
compelling state interest.” Lefemine v. Davis, 732 F. Supp. 2d
614, 627 (D.S.C. 2010).
Nevertheless, the district court held that Lefemine could
not recover damages. It concluded that the Officers were
entitled to qualified immunity because the unconstitutionality
of their conduct had not previously been clearly established.
The court further held that Lefemine failed to establish that
the Sheriff’s Office had a custom or policy of infringing on
citizens’ First Amendment rights. Finally, the district court
refused to award Lefemine attorneys’ fees.
On appeal, this Court affirmed on all issues. Lefemine
sought and was granted certiorari by the United States Supreme
6
Court, which ultimately rebuffed our holding that Lefemine did
not qualify as a “prevailing party” under Section 1988 and thus
was not entitled to attorneys’ fees. The Supreme Court held
that “the injunction ordered the defendant officials to change
their behavior in a way that directly benefited the plaintiff,”
thereby making him a “prevailing party.” Lefemine v. Wideman,
133 S. Ct. 9, 10 (2012). However, because “[n]either of the
courts below addressed whether any special circumstances
exist[ed] in this case” making a fee award unjust,
id. at 12,
the Supreme Court remanded to us, and we, in turn, remanded to
the district court to award fees unless the court determined by
express findings that special circumstances rendered such an
award unjust.
On remand, the district court found three special
circumstances that made an attorneys’ fees award to Lefemine
unjust: “(1) the Defendants’ qualified immunity, (2) the absence
of a policy or custom of discrimination against abortion
protestors by the Greenwood County Sheriff’s office, and (3) the
limited nature of the injunctive relief.” Lefemine, 2013 WL
1499152, at *4. With this appeal, we now review the district
court’s ruling denying Lefemine his attorneys’ fees under the
abuse of discretion standard. Mercer v. Duke Univ.,
401 F.3d
199, 203 (4th Cir. 2005) (“A district court’s decision to grant
7
or deny attorney’s fee[s] under [S]ection 1988 is reviewed for
abuse of discretion.”).
II.
A.
The Civil Rights Attorney’s Fees Awards Act of 1976
authorizes the award of “a reasonable attorney’s fee” to “the
prevailing party” in certain civil rights actions, including
suits brought under Section 1983. 42 U.S.C. § 1988(b). “The
purpose of [Section] 1988 is to ensure effective access to the
judicial process” for persons with civil rights grievances.
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quotation marks
and citation omitted).
“Congress enacted [Section] 1988 specifically because it
found that the private market for legal services failed to
provide many victims of civil rights violations with effective
access to the judicial process.” City of Riverside v. Rivera,
477 U.S. 561, 576 (1986) (citations omitted). Congress
attributed this market failure in part to the fact that “[t]hese
victims ordinarily cannot afford to purchase legal services at
the rates set by the private market.”
Id. (citations omitted).
Crucially for this case, Congress also attributed the need
for Section 1988 to public official immunities that severely
limit money damages even in the face of success: “[W]hile
8
damages are theoretically available under the statutes covered
by [Section 1988], . . . in some cases, immunity doctrines and
special defenses, available only to public officials, preclude
or severely limit the damage remedy.” Id. at 577 (quotation
marks, citation, and emphasis omitted). Accordingly, “awarding
counsel fees to prevailing plaintiffs in such litigation is
particularly important and necessary if [f]ederal civil and
constitutional rights are to be adequately protected.’ House
Report, at 9.”
Id. (quotation marks and citation omitted). See
also Pulliam v. Allen,
466 U.S. 522, 527 (1984) (noting that
“the legislative history of [Section] 1988 clearly indicates
that Congress intended to provide for attorney’s fees in cases
where relief properly is granted against officials who are
immune from damages awards” and noting that “awarding counsel
fees to prevailing plaintiffs in such litigation is particularly
important and necessary if [f]ederal civil and constitutional
rights are to be adequately protected”).
In light of Section 1988’s language and purpose, a
prevailing plaintiff “should ordinarily recover an attorney’s
fee unless special circumstances would render such an award
unjust.” Hensley, 461 U.S. at 429 (citations and quotation
marks omitted). “Courts have universally recognized that [the]
special circumstances exception is very narrowly limited.” Doe
v. Bd. of Educ. of Baltimore Cnty.,
165 F.3d 260, 264 (4th Cir.
9
1998) (quotation marks and citation omitted). Indeed, “[o]nly
on rare occasions does a case present such circumstances . . .
.” Id. See also, e.g., DeJesus Nazario v. Morris Rodriguez,
554 F.3d 196, 200 (1st Cir. 2009) (stating that the special
circumstances justifying denial of attorneys’ fees are “few and
far between”).
For example, the Supreme Court recognized a special
circumstance justifying the denial of attorneys’ fees to a pro
se plaintiff who was an attorney in Kay v. Ehrler, 499 U.S. 432
(1991). A fee award would not further “the overriding statutory
concern . . . in obtaining independent counsel for victims of
civil rights violations.”
Id. at 437. The Supreme Court
concluded that “[t]he statutory policy of furthering the
successful prosecution of meritorious claims is better served by
a rule that creates an incentive to retain counsel . . . .”
Id.
at 438.
Similarly, in Chastang v. Flynn & Emrich Co. we recognized
a rare special circumstance justifying the denial of attorneys’
fees under Section 1988 where the plaintiffs’ suit did not
vindicate civil rights. 541 F.2d 1040 (4th Cir. 1976). In
Chastang, an employer’s profit-sharing and retirement plan
discriminated based on sex. The discrimination had been legal
when incorporated into the plan, could not be modified
unilaterally by the defendants once it became illegal, but had
10
been amended “with reasonable dispatch . . . once the need for
amendment was established” and in any event before the
litigation began. Id. at 1045. We held that “[b]ecause the
plan was amended to eliminate its illegally discriminatory
aspects before plaintiffs’ suits were filed, they cannot be said
to have derived any benefit, direct or indirect, from the
litigation.”
Id. Accordingly, we upheld the district court’s
finding of special circumstances.
Id.
By contrast, in Bills v. Hodges, we held that the district
court abused its discretion by denying successful civil rights
plaintiffs their attorneys’ fees under Section 1988.
628 F.2d
844 (4th Cir. 1980). In Bills, the plaintiffs’ landlord served
them with an eviction notice motivated by the plaintiffs’
“biracial dating and entertainment practices.”
Id. at 845. The
district court awarded the plaintiffs injunctive relief under
the Civil Rights Act and Fair Housing Act but denied them
attorneys’ fees under Section 1988 because the plaintiffs “could
well afford to hire their own lawyers” and because “the court
felt the defendant acted in good faith.”
Id. at 847. We
squarely rejected both of those “special circumstances” and held
that the plaintiffs were “entitled to an award of attorneys’
fees . . . .”
Id.
11
B.
As stated previously, the district court here held that
three “special circumstances” justified the denial of attorneys’
fees to Lefemine: “(1) the Defendants’ qualified immunity, (2)
the absence of a policy or custom of discrimination against
abortion protestors by the Greenwood County Sheriff’s Office,
and (3) the limited nature of [Lefemine’s] injunctive relief.”
Lefemine, 2013 WL 1499152, at *4. Lefemine argues that in so
doing, the district court committed reversible error. To
determine whether the district court abused its discretion in
determining that “special circumstances” justified denying
Lefemine his fees, we examine each of the circumstances upon
which the district court relied.
1.
The district court first found that a “special
circumstance” arose from its determination that the Defendant
Officers were entitled to qualified immunity. Because qualified
immunity shielded the Defendant Officers from personal liability
for damages, Lefemine was unable to obtain even nominal damages—
the only remedy Lefemine sought but failed to obtain. 2 Lefemine,
672 F.3d at 297–301, 303. The district court deemed qualified
2
Although Lefemine’s complaint included a prayer for
“compensatory and/or nominal” damages, J.A. 21, Lefemine
abandoned his quest for compensatory damages and sought only
nominal damages at summary judgment.
12
immunity “special” such that it made an award of attorneys’ fees
under Section 1988 unjust.
But neither this Court nor the Supreme Court has ever held
that qualified immunity constitutes a special circumstance
supporting the denial of Section 1988 attorneys’ fees. In fact,
the case law suggests quite the opposite. As the Supreme Court
has underscored, in many Section 1988 cases, “immunity doctrines
and special defenses, available only to public officials,
preclude or severely limit the damage remedy.” Rivera, 477 U.S.
at 577 (quotation marks and emphasis omitted). Accordingly,
“awarding counsel fees to prevailing plaintiffs in such
litigation is particularly important and necessary if [f]ederal
civil and constitutional rights are to be adequately protected.”
Id. (quotation marks and citation omitted).
In its qualified immunity analysis, the district court
sought to bolster its special circumstance finding by noting
that “Defendants’ actions [were] taken in good faith” and that
“[i]t was never the Defendants’ intent to infringe upon
[Lefemine’s] First Amendment rights . . . .” Lefemine, 2013 WL
1499152, at *5. Yet we, and our sister circuits, have
repeatedly rejected good faith as a special circumstance
justifying the denial of Section 1988 attorneys’ fees—and for
good reason: “The Civil Rights Attorney’s Fees Awards Act is
not meant as a ‘punishment’ for ‘bad’ defendants who resist
13
plaintiffs’ claims in bad faith. Rather, it is meant to
compensate civil rights attorneys who bring civil rights cases
and win them.” Williams v. Hanover Hous. Auth., 113 F.3d 1294,
1302 (1st Cir. 1997). See also, e.g.,
Bills, 628 F.2d at 847
(“The district court also refused to award attorneys’ fees at
least partly because the court felt the defendant acted in good
faith. However, a defendant’s good faith is not a special
circumstance that would render an award of fees unjust.”);
Wilson v. Stocker,
819 F.2d 943, 951 (10th Cir. 1987) (noting
that “the alleged special circumstances amount to no more than
assertions that the Attorney General has acted in good faith, a
ground overwhelmingly rejected by the courts” and that Section
1988 “is not designed to penalize defendants but to encourage
injured individuals to seek relief”); Lampher v. Zagel,
755 F.2d
99, 104 (7th Cir. 1985) (calling the defendant’s good faith
“irrelevant” to a Section 1988 fee determination); Kirchberg v.
Feenstra,
708 F.2d 991, 999 (5th Cir. 1983) (“Good faith is not
a special circumstance.”).
We believe that special government immunities that restrict
civil rights plaintiffs’ recoveries weigh in favor of—and
certainly not against—awarding Section 1988 fees. The district
court here erred in holding otherwise. Accordingly, we hold
that the district court abused its discretion in denying an
14
attorneys’ fee award to Lefemine because the Officer Defendants
were shielded by qualified immunity.
2.
The district court also found that “the absence of a policy
or custom of discrimination against abortion protestors by the
Greenwood County Sheriff’s Office” constituted a special
circumstance that justified the denial of an attorneys’ fee
award under Section 1988. Lefemine, 2013 WL 1499152, at *4. We
disagree.
Unless a government entity has a policy or custom of
discrimination, a court will not attribute an individual’s
constitutional violations to the government entity. Monell v.
Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 694
(1978) (“[A] local government may not be sued under [Section]
1983 for an injury inflicted solely by its employees or agents.
Instead, it is when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy,
inflicts the injury that the government as an entity is
responsible under [Section] 1983.”). Here, Lefemine failed to
show that the Greenwood County Sheriff’s Office had a policy or
custom of discrimination. The Sheriff’s Office thus could not
be held liable for the Officer Defendants’ constitutional
15
violations, and Lefemine could not obtain even nominal damages
from the Sheriff’s Office. Lefemine, 672 F.3d at 297-301. 3
But neither this Court nor the Supreme Court has ever
suggested that a plaintiff’s inability to bring a viable Monell
claim against a government entity somehow blocks otherwise
prevailing civil rights plaintiffs from obtaining their
attorneys’ fees under Section 1988. And for good reason—because
Section 1988 “is not meant as a ‘punishment’ for ‘bad’
defendants” but is instead “meant to compensate civil rights
attorneys who bring civil rights cases and win them.” Williams,
113 F.3d at 1302. It would turn Section 1988 on its head to
suggest that a plaintiff who successfully sues government
officials for civil rights violations should be denied
attorneys’ fees for the profoundly non-“special” circumstance
that the entity for whom those officials work could not be held
liable under Monell.
Again, “awarding counsel fees to prevailing plaintiffs in”
civil rights litigation against government entities and
officials “is particularly important and necessary if [f]ederal
civil and constitutional rights are to be adequately protected.”
Rivera, 477 U.S. at 577 (quotation marks and citation omitted).
The district court here erred in suggesting otherwise by deeming
3
Though, again, nominal damages was the only relief
Lefemine sought but failed to achieve.
16
the absence of a custom or policy a special circumstance.
Denying Lefemine attorneys’ fees on that basis constituted an
abuse of discretion.
3.
Finally, the district court found that the limited nature
of the relief granted to Lefemine constituted a special
circumstance making a Section 1988 fee award unjust. Yet this
factor, like the two before it, cannot support denying Lefemine
his attorneys’ fees.
The relief Lefemine obtained is notably broader than the
district court acknowledged. Significantly, Lefemine obtained
two of the remedies he sought: an injunction and a declaratory
judgment against multiple defendants. Additionally, although
the district court characterized the injunction as “extremely
limited[,]” Lefemine, 2013 WL 1499152, at *7, it bars
Defendants from future restrictions of Lefemine’s graphic signs
“without narrowly tailoring [the] restrictions to serve a
compelling state interest.”
Lefemine, 732 F. Supp. 2d at 627.
Particularly in light of Defendants’ position that, faced with
the same circumstances again, the Sheriff’s Office would respond
“in exactly the same manner: order the person(s) to stop or face
criminal sanctions[,]” J.A. 225, the injunction’s impact is
hardly de minimis.
17
Moreover, while the district court accurately noted that
Lefemine “was able to conduct two other protests without
incident,” Lefemine, 2013 WL 1499152, at *7, the fact that
Defendants had not yet further violated Lefemine’s First
Amendment rights is of little moment. Defendants previously
maintained that they would respond to a future protest in
exactly the same way as they originally responded: by
“order[ing] the person(s) to stop or face criminal sanctions.”
Lefemine, 732 F. Supp. 2d at 619 (quotation marks and citation
omitted). The injunction bars that response. The fact that
Lefemine appealed to this Court and then to the Supreme Court
and won only further underscores that the significance of his
case is not as “minimal” as the district court portrayed.
Lefemine,
2013 WL 1499152, at *7.
In downplaying the relief Lefemine achieved, the district
court looked to Mercer, 401 F.3d 199, which, in turn, looked to
Farrar v. Hobby,
506 U.S. 103 (1992). Farrar, in which the
Supreme Court affirmed the denial of attorneys’ fees based on
the limited nature of the plaintiff’s relief, provides an
instructive contrast to this case. In Farrar, the plaintiff
sought $17 million in compensatory damages, alleging violations
of his right to due
process. 506 U.S. at 106. Yet the
plaintiff was awarded only nominal damages.
Id. at 107. The
Supreme Court held that “[w]hen a [prevailing party] recovers
18
only nominal damages because of his failure to prove an
essential element of his claim for monetary relief, the only
reasonable fee is usually no fee at all.” Id. at 115 (citation
omitted).
In contrast to Farrar, Lefemine successfully proved the
elements required to secure the relief he sought—namely, an
injunction and a declaratory judgment. And, for the reasons
discussed above, Lefemine could not have obtained money damages
against the Defendants for reasons related not to the merits of
his case, but rather to the special governmental immunities and
defenses that weigh in favor of awarding fees. Accordingly,
neither Mercer nor Farrar supports denying attorneys’ fees here.
In sum, Lefemine obtained nearly all of the relief he
sought—namely, declaratory and injunctive relief protecting his
First Amendment rights. And the district court erred in holding
that the “limited nature of relief granted” constituted a
special circumstance making a fee award unjust. Lefemine, 2013
WL 1499152, at *7.
III.
Today, we hold that qualified immunity, the absence of a
policy or custom of discrimination, and the nature of the relief
granted here—whether considered individually or together through
a “totality of the circumstances” lens—cannot support the denial
19
of attorneys’ fees to Lefemine, a prevailing civil rights
plaintiff. By denying Lefemine his fees on those bases, the
district court abused its discretion, and, accordingly, is
reversed.
Consequently, we remand this matter to the district court
with instructions to allow Lefemine to make a fee application
and for an ensuing determination of the reasonable fee award for
Lefemine’s successful prosecution of this civil rights matter,
including “the time spent defending entitlement to attorney’s
fees . . . .” 4 Mercer, 401 F.3d at 202 n.3 (quotation marks and
citation omitted).
REVERSED AND REMANDED
4
“[T]he critical focus in calculating a reasonable
attorney’s fee is in determining the lodestar figure[,]” i.e.,
“[a] fee based upon reasonable rates and hours[.]” Daly v.
Hill, 790 F.2d 1071, 1078 (4th Cir. 1986). Indeed, “[a] proper
computation of the lodestar fee will, in the great majority of
cases, constitute the ‘reasonable fee’ contemplated by [Section]
1988.”
Id.
20
