Filed: May 24, 2012
Latest Update: Mar. 02, 2020
Summary: Case: 10-51236 Document: 00511866524 Page: 1 Date Filed: 05/24/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED May 24, 2012 No. 10-51236 Lyle W. Cayce Clerk TONY SMITH, Plaintiff – Appellant v. HUBERT ARTURO ACEVEDO, also known as Art Acevedo, In his official capacity as Chief of Police of the City of Austin and in his personal capacity; MIKE CRONIG, In his official capacity as Assistant City Attorney of the City of Austin and i
Summary: Case: 10-51236 Document: 00511866524 Page: 1 Date Filed: 05/24/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED May 24, 2012 No. 10-51236 Lyle W. Cayce Clerk TONY SMITH, Plaintiff – Appellant v. HUBERT ARTURO ACEVEDO, also known as Art Acevedo, In his official capacity as Chief of Police of the City of Austin and in his personal capacity; MIKE CRONIG, In his official capacity as Assistant City Attorney of the City of Austin and in..
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Case: 10-51236 Document: 00511866524 Page: 1 Date Filed: 05/24/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 24, 2012
No. 10-51236 Lyle W. Cayce
Clerk
TONY SMITH,
Plaintiff – Appellant
v.
HUBERT ARTURO ACEVEDO, also known as Art Acevedo, In his official
capacity as Chief of Police of the City of Austin and in his personal capacity;
MIKE CRONIG, In his official capacity as Assistant City Attorney of the City
of Austin and in his personal capacity; CITY OF AUSTIN,
Defendants – Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:09-CV-620
Before BENAVIDES, STEWART, and GRAVES, Circuit Judges.
PER CURIAM:*
Tony Smith (“Smith”) brought this §1983 suit claiming that defendants:
(1) wrongfully terminated him as an Austin, Texas police officer based on an
unconstitutional Austin Police Department (“APD”) General Order
[A201.04(G)(2)]; (2) retaliated against him for exercising his First Amendment
rights; (3) deprived him of his “liberty and property rights,” in violation of §
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 10-51236
1983; (4) committed the Texas state tort of defamation; and (5) conspired
together to slander him. The parties then filed cross-motions for summary
judgment. The district court granted summary judgment in favor of Smith with
respect to his claim that the APD General Order A201.04(G)(2) was an
unconstitutional prior restraint of free speech. The district court otherwise
denied Smith’s motion for summary judgment, and granted the defendants’
motion for summary judgment on all remaining claims. Smith now appeals.
FACTS AND PROCEDURAL HISTORY
I. Factual Background
Smith is a former police officer for the City of Austin, Texas (“the City”),
who was terminated for insubordination, undermining the Chief of Police’s
authority, and misusing the City computers. In part, Smith’s termination
resulted from his 2005 agreed upon and non-appealable 60-day suspension for
various violations of APD General Orders. As described below, many of the
facts of this case are undisputed and were presented in a quasi-judicial
post-termination appeal hearing conducted by an independent hearing
examiner.
On May 30, 2008, Chief Hubert Acevedo (“Acevedo”) terminated APD
Sergeant Dustin Lee and issued a memorandum explaining that Lee had been
terminated for sexual harassment and dishonesty. Three days later, Smith was
serving as a patrol officer on the evening shift based out of the Central East
Substation in Austin, Texas, when he overheard several other officers
discussing Lee’s termination. During this discussion, Smith recalled reading
a newspaper article indicating that Acevedo had been accused of sexual
harassment at a former job. Because Smith believed it was “ironic” that
Acevedo had previously been accused of sexual harassment, but had terminated
Lee, Smith went into the “show-down” room to use a City computer to conduct
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additional research into the allegations against Acevedo.1 While researching,
Smith found a website that contained potentially embarrassing allegations
against Acevedo, copied that information to a word document, and printed the
document from a City printer. Smith then showed the document to Officers
Anderson and Justesen. Upon showing Anderson the document, Smith
questioned: “How is Acevedo going to terminate Lee when he did the same
thing?”2
Later, Smith posted the document on the bulletin board in the “show-
down” room, where it could be viewed by officers of every patrol shift. Smith
acknowledged that the allegations contained in the document were potentially
personal and highly embarrassing to Acevedo, and that he did not know
whether the allegations were true. At the conclusion of the evening shift (the
next morning), Officer James Purcell noticed the document and reported
Smith’s actions to Sergeant Slater, a supervisor of another shift. Sergeant
Slater reported the incident up the chain of command to Commander Rob
Gamble. Believing that the incident was a violation of APD’s General Orders,
Commander Gamble initiated an Internal Affairs (“IA”) complaint against
Smith. On June 16, 2008, Smith signed a memorandum acknowledging his
receipt of the IA complaint.
After conducting an investigation, IA sent an “Investigative Summary”
memorandum to Acevedo on August 6, 2008. According to the Investigative
Summary, IA interviewed Smith,3 Purcell, and Justesen, and received written
statements from Sergeant Slater and Anderson. The Investigative Summary
1
The “show-down” room is where officers return to after their respective shifts and
draft reports and turn in evidence.
2
It is not exactly clear what Smith said, but both parties cite to facts that indicate
Smith said something along these lines.
3
Smith was represented by counsel during the IA interview.
3
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concluded by recommending that the allegations against Smith be sustained for
(1) violation of APD General Order A312.03(A)(1), for improper computer use;
and (2) violation of APD General Order A201.04(G)(2), for criticizing the APD
in a way that was defamatory and undermined its effectiveness.
On August 27, 2008, APD conducted a Disciplinary Review Hearing
(“DRH”). Because Acevedo was involved in the subject matter of the complaint,
Acevedo recused himself and appointed Assistant Chief Holt. Prior to the DRH,
Smith and his attorney were able to review the charges and evidence against
him.
At the outset of the DRH, Smith was advised that Acevedo, as Chief of
Police, was considering adding an additional allegation of insubordination
against him.4 During the DRH, Smith was provided the opportunity to answer
questions and make statements. He did both. Smith also submitted a written
statement wherein he admitted, “I understand that some of my actions were
violations of department policy.” At the conclusion of the DRH, Sergeant
Hightower, Lieutenant Rosch, and Commander Gamble (collectively “Smith’s
chain of command”)5 recommended to Acevedo that all allegations, including the
additional allegation of insubordination, be sustained against Smith.6 Acevedo
agreed with the recommendation and sustained all of the allegations against
Smith.
4
Although the record does not indicate the specific basis for this recommendation, APD
policy defines insubordination as "[d]efying the authority of any supervisor by obvious
disrespect, arrogant or disrespectful language or conduct, ridicule, or bold challenge to orders
issued." APD General Order A201.04(E)(2).
5
“Chain of command” is used throughout the parties’ briefs in order to describe an
officer’s supervisors.
6
Although Acevedo could recuse himself from attending the DRH, he could not recuse
himself from making the final disciplinary decision. According to Texas civil service law, the
police chief has the sole authority to suspend or terminate police officers. See TEX. LOC. GOV’T
CODE § 143.052(b).
4
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After the DRH, Acevedo offered Smith the opportunity to resign or to take
a 30-day unpaid suspension in lieu of termination. Smith declined both offers.
However, Smith’s chain of command had recommended that Smith be
terminated. Before deciding the appropriate disciplinary action, both Smith’s
chain of command and Acevedo reviewed Smith’s work history.
On September 10, 2008, Acevedo issued a memorandum (“2008
memorandum”), drafted by Mike Cronig (“Cronig”), terminating Smith.
According to the 2008 memorandum, Smith’s termination was based in-part on
a 2005 memorandum, which indicated that Smith had been suspended for sixty
days for violating five APD rules and regulations. Specifically, the 2005
memorandum indicated that Smith violated: (1) A201.02(H)(1), “Associating
with Persons of Bad Reputations”; (2) A201.03(E)(3)(d) & (e), “Unethical
Interference with Investigation of Legal Process”; (3) A201.01(C)(1) & (2),
committing Texas state law crimes of criminal conspiracy and money
laundering; (4) A201.04(E)(1), for insubordination; and (5) A312.03(A)(1), for
unauthorized computer use.7 The 2008 memorandum acknowledged that
Smith signed the 2005 memorandum acknowledging the receipt of the 2005
memorandum and his understanding that he forfeited his right to appeal the
60-day suspension in return for the then-Chief of Police Knee not exercising his
right to terminate Smith for the violations. Based on Smith’s conduct as
reported in the 2005 memorandum and the 2008 APD violations, Acevedo
signed the 2008 memorandum terminating Smith.
7
In 2005, Smith entered into an agreed 60-day unpaid suspension for conduct
associated with his sexual relationship with a known user of methamphetamine. During the
relationship, Smith used APD computers to conduct warrant searches on his paramour at her
request, failed to arrest or detain his paramour after he believed she had purchased drugs,
advised his paramour that she could conceal a drug transaction by obtaining a receipt for
cleaning services from her drug dealer, and continued to see his paramour despite his chain
of command's directive to terminate the relationship.
5
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Soon after his 2008 termination, Smith exercised his right to appeal to an
independent hearing examiner. Smith was represented by a lawyer throughout
the entire appeal process. Both parties were able to present documentary
evidence, subpoena witnesses, examine and cross-examine witnesses, make
evidentiary objections to the hearing examiner, and present opening statements
and closing arguments. Moreover, witnesses were placed under oath, the rule8
was invoked, and a transcript was made of the proceedings.
On May 4, 2009, the hearing examiner issued a written opinion upholding
Acevedo’s decision to terminate Smith based on his finding that Smith violated
all three of the cited APD General Orders, as well as his finding that the 2005
discipline had failed to correct Smith’s conduct. Because Smith could not appeal
the hearing examiner’s decision to a Texas state court, see TEX. LOC. GOV’T
CODE § 143.057(j), Smith filed this suit in the District Court for the Western
District of Texas, Austin Division.
II. Procedural Background
On August 14, 2009, Smith brought suit against defendants Acevedo,
Cronig, and the City (collectively “the defendants”), alleging that: (1) Acevedo
and Cronig denied him his due process rights, in violation of 42 U.S.C. § 1983;
(2) Acevedo and Cronig wrongfully retaliated against him by terminating his
employment as an Austin Police Officer for exercising his First Amendment
rights; (3) the City has a policy that imposes a prior restraint on free speech in
violation of the First Amendment; (4) defendants committed the state law tort
of defamation against him; and (5) defendants conspired to slander him. The
defendants timely answered Smith’s complaint, denied the claims against them,
and asserted several affirmative defenses. Specifically, Acevedo and Cronig
8
Although there is no reference to the specific rule invoked, we can assume that the
parties were referring to the exclusion of witnesses from the hearing under Federal Rule of
Evidence 615 because this is in the context of a hearing where witnesses were examined.
6
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assert, inter alia, that they are entitled to qualified immunity for Smith’s
federal claims, and official immunity for Smith’s state law defamation and
slander claims. The City asserts that it is entitled to sovereign or governmental
immunity.
On August 2, 2010, the defendants filed their motion for summary
judgment. Smith then filed his motion for summary judgment. After reviewing
the parties’ motions, the district court granted Smith’s motion for summary
judgment with respect to his claim that APD General Order A201.04(G)(2),
prohibiting criticism of the departments, is an unconstitutional prior restraint
on free speech. The district court otherwise denied Smith’s motion for summary
judgment, and granted the defendants’ motion for summary judgment on all
remaining claims.
On September 20, 2010, the district court entered its final judgment,
awarding Smith nominal damages in the amount of one dollar, plus all costs,
with respect to his claim that APD General Order A201.04(G)(2) is a facially
unconstitutional prior restraint of free speech. In addition, the district court
entered its final judgment for the defendants on all remaining claims and taxed
all costs of defending the suit against Smith.
Thereafter, Smith filed two motions for reconsideration. The district court
denied both. Aggrieved by the district court’s final judgment, Smith timely
appealed.
STANDARD OF REVIEW
We review a district court's grant of summary judgment de novo, applying
the same legal standards as the district court. United States v. Caremark, Inc.,
643 F.3d 808, 814 (5th Cir. 2011). Summary judgment should be granted if
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED .R.CIV.P. 56(a). A genuine issue of
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material fact exists when the evidence is such that a reasonable jury could
return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “[A]ll facts and evidence must be taken in the light most
favorable to the non-movant.” LeMarie v. La. Dep’t of Transp. & Dev.,
480 F.3d
383, 387 (5th Cir. 2007). To avoid summary judgment, however, the
non-movant must go beyond the pleadings and come forward with specific facts
indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom,
448
F.3d 744, 752 (5th Cir. 2006). This court is “not limited to the district court's
reasons for its grant of summary judgment” and “may affirm the district court's
summary judgment on any ground raised below and supported by the record.”
Aryain v. Wal-Mart Stores Tex. LP,
534 F.3d 473, 478 (5th Cir. 2008).
DISCUSSION
On appeal, Smith raises four issues challenging the district court’s order
granting in-part and denying in-part the parties’ motions for summary
judgment. Smith claims the district court erred in holding that: (1) Smith
suffered “no actual damage” with respect to his claim that APD General Order
A201.04(G)(2) constituted an unconstitutional prior restraint of his right to free
speech; (2) an officer is guilty of insubordination when that officer defies a rule
or regulation that is later determined to be unconstitutional; (3) Acevedo and
Cronig were entitled to qualified immunity; and (4) Smith was entitled only to
$2500.00 in attorney’s fees.
I. Actual Harm
Smith claims that the district court erred in holding that he suffered “no
actual harm,” despite the district court’s finding that APD General Order
A201.04(G)(2), prohibiting criticism of the department, constituted an
unconstitutional prior restraint on free speech, in violation of the First
Amendment. In other words, Smith asserts, but for violating an APD General
8
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Order that was later determined to be unconstitutional, he would not have been
terminated. Furthermore, Smith states that the district court’s reliance on his
statement – “The reasons for the disciplinary action . . . were insubordination,
criticism of Acevedo, and unauthorized computer use. Any of these infractions
could have resulted in Plaintiff’s termination” – was erroneous because he was
terminated based primarily on criticizing Acevedo, the violation that was later
determined to be unconstitutional as a prior restraint on free speech.
To the contrary, defendants claim that “Acevedo could have, and did in
fact, terminate Smith for violations of other applicable [APD] General Orders
as well as his prior disciplinary history.” Defendants primarily rely on the 2008
memorandum which focuses on Smith’s conduct as a whole; not on the fact that
Smith violated a particular APD General Order. This included “Smith’s work
performance, his disciplinary history, his presentation to Internal Affairs and
the [DRH], his working relationship with his peers, his untruthfulness, his
attempts to mitigate his true culpability . . . [and] Smith’s sustained violations,
especially his 2005 conduct . . . .” The defendants also cite to the DRH’s
independent hearing officer’s opinion in which the hearing officer stated:
The 2005 agreed suspension was for very serious misconduct. The
misconduct in this case is also serious. Because the computer and
insubordination charges are sustained in both cases, it is apparent
that the prior discipline did not correct the misconduct. Therefore,
it appears that an indefinite suspension is an appropriate discipline
in this case.
As the district court granted defendants summary judgment as to actual
harm, we view the facts and evidence with regard to such issue “in the light
most favorable to the [Smith].” See LeMarie, 480 F.3d at 387. Nevertheless, it
is clear that, beyond violation of APD General Order A201.04(G)(2), Smith was
terminated based on his work performance, his disciplinary history, and
sustained violations for unauthorized computer use and insubordination in both
9
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2005 and 2008. Moreover, assuming that Smith was not charged with violating
APD General Order A201.04(G)(2), Smith conceded that he could have been
terminated based upon the insubordination or unauthorized computer use
violations. Although Smith argues that he would not have been terminated for
those infractions, he fails to cite any evidence in the record to create a genuine
dispute with the 2008 memorandum, which places significant emphasis on his
recidivism. Based on these facts, it is clear that Smith suffered no actual harm
for violating an unconstitutional APD General Order because Smith would have
been terminated notwithstanding that violation.
II. Finding of Insubordination
Here, Smith claims that the district court erred in determining that his
behavior was “clearly insubordinate” because “defiance of a rule that is in
violation of the First Amendment is NOT punishable as ‘insubordination.’”
Smith argues that the City’s disciplinary process defines insubordination
differently than the district court; and therefore, the district court erred in
determining that he was insubordinate.
Because the district court granted summary judgment in favor of
defendants with respect to this claim, this court must view “all facts and
evidence . . . in the light most favorable to [Smith].” LeMarie v. La. Dep’t of
Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007). However, Smith offers no
evidence or authority in support of his claim that his insubordination charge
stemmed solely from his violation of an unconstitutional APD General Order.
Smith offers only the conclusory allegation that “any rule purporting to punish
Tony Smith for disobeying [APD General Order A201.04(G)(2)] is likewise
invalid and unenforceable.”
Pursuant to APD General Order A201.04(E)(2), an officer is guilty of
insubordination if he defies “the authority of any supervisor by obvious
10
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disrespect, arrogant or disrespectful language or conduct, ridicule, or bold
challenges to orders issued . . . .” APD General Order A201.04(E)(2). In
contrast to Smith's argument, insubordination does not require a violation of a
APD General Order, much less violation of APD General Order A201.04(G)(2).
Prior to posting the highly personal and embarrassing allegations about
Acevedo, Smith showed that information to two other officers in response to
Acevedo’s termination of Lee. Smith further commented to at least one other
officer that Acevedo’s termination of Lee was hypocritical, or “How is he
(Acevedo) going to terminate Lee for sexual harassment when he (Acevedo) did
the same thing?” Here, it is evident that Smith’s conduct was disrespectful and
was obviously intended to ridicule Acevedo and his decisions concerning the
APD. According to APD General Order A201.04(E)(2) and the record before us,
the district court correctly determined that Smith’s conduct constituted
insubordination, regardless of whether it also violated APD General Order
A201.04(G)(2).
III. Qualified Immunity and Due Process Claims
In his first amended complaint, Smith contends that the defendants
deprived him of his (1) property interest in his reputation; (2) his liberty
interest in free speech and freedom of the press;9 and (3) liberty and property
interest in his employment. The district court, however, dismissed Smith’s
claims because Smith failed to establish a violation of his due process rights,
some or all of Smith’s claims were time barred by the statute of limitations, and
the evidence established that the defendants were entitled to qualified
immunity.
9
On appeal, Smith fails to challenge the district courts holding with respect to this
issue. Therefore, we do not address this issue here.
11
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Initially, it should be noted that Smith’s brief to this court fails to
specifically argue that the district court erred when it determined Smith was
not deprived of his liberty or property interest. Instead, Smith makes the
conclusory statement that defendants are not entitled to qualified immunity
because they acted without the authority of law.10 The only factual evidence
Smith seems to rely on comes from his reply to the defendants’ response to
plaintiff’s motion for summary judgment.
In his reply, Smith states that Cronig drafted the 2005 memorandum
containing the money laundering and criminal conspiracy charges but made no
effort to support those charges with any evidence. Smith claims that Cronig
then drafted the 2008 memorandum and inserted the 2005 money laundering
and criminal conspiracy charges without further investigating the truth of those
charges. Finally, Smith asserts that when Acevedo and Cronig published the
2008 memorandum they violated his due process rights because neither of them
knew of any evidence to support the 2005 money laundering and criminal
conspiracy charges.
Here, it is apparent that Smith is trying to challenge the authenticity of
the 2005 money laundering and criminal conspiracy charges by claiming that
the defendants, in 2008, did not have any evidence to support their allegations
that Smith committed the 2005 offenses. However, to the extent that Smith
alleges due process violations that occurred in 2005, his claims are time barred.
Because § 1983 does not have a designated statute of limitations, the
forum state’s general tort statute of limitations applies; in Texas, this statute
of limitations period is two years. Price v. City of San Antonio, Tex., 431 F.3d
890, 892 (Tex. 2005). Smith signed the 2005 memorandum on April 20, 2005;
10
Smith attempts to make an ultra vires claim against defendants, but again cites only
to case law and concludes, without more, that defendants acted without authority of law and
are therefore not entitled to qualified immunity.
12
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he brought this suit on August 14, 2009. Therefore, any claims stemming from
the process he received in 2005 are time barred.
IV. Attorney’s Fees
In its final judgment, the district court ordered that the City of Austin pay
costs associated with the claim on which Smith prevailed, and that Smith
should pay costs for the remaining claims. Thereafter, both parties filed their
motions for attorney’s fees and bill of costs.
Title 42 U.S.C. § 1988 provides that in a federal civil rights action “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 . . . .” See 42 U.S.C.
§1988(b). In Jimenez v. Wood County, Tex., 621 F.3d 372 (5th Cir. 2010), we
restated the basic procedure and standard for determining attorney’s fees:
The determination of a fees award is a two-step process.
First the court calculates the “lodestar” which is equal to the
number of hours reasonably expended multiplied by the prevailing
hourly rate in the community for similar work. The court should
exclude all time that is excessive, duplicative, or inadequately
documented. Once the lodestar amount is calculated, the court can
adjust it based on the twelve factors set forth in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). The
court must provide a reasonably specific explanation for all aspects
of a fee determination. We review the award for abuse of
discretion.
621 F.3d at 379-80 (internal citations and quotation marks omitted). According
to Johnson, the following factors are to be considered when setting a reasonable
award of attorney’s fees: (1) time and labor required; (2) novelty and difficulty
of the questions presented; (3) skill requisite to perform the legal services
properly; (4) preclusion of other employment; (5) customary fee; (6) whether the
fee is fixed or contingent; (7) limitations imposed by the client or the
circumstances; (8) amount involved and the result obtained; (9) experience,
reputation, and ability of the attorneys; (10) “undesirability” of the case; (11)
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nature and length of the professional relationship with the client; and (12)
awards in similar cases. 488 F.2d at 717-19.
In his motion for attorney’s fees, Smith seeks approximately $100,000.
According to Smith, Bill Gammon billed seventy-three hours at a rate of $400
per hour and David Roger, Gammon’s associate, billed 252 hours at a rate of
$250 per hour. Smith then applies a multiplier of 1.2 to each of his attorneys’
fees based on the Court of Appeals for the Ninth Circuit’s approval of a 2.0
multiplier.11 Thus, Smith requested attorneys’ fees of $88,512. In addition,
Smith claims that Rogers spent $192.00 in process service costs, $2,361.10 in
deposition costs, $1,718.80 in photocopying and printing costs, $4,475 as
payment for paralegal research and document drafting, and $1,182.50 as
payment for legal secretary case management. Thus, Smith claims a total of
$98,441.40 in attorney’s fees and costs.
However, based on the district court’s calculation, Smith was awarded
attorney’s fees and costs in an amount significantly less than that requested.
The district court determined:
Having considered all of the Johnson factors, the evidence
provided by Smith’s counsel, and the arguments and objections of
the parties, the district court awarded Smith $2,500 in attorney’s
fees and costs. This sum appropriately reflects Smith’s very limited
success, while still recognizing the useful time spent by counsel, the
minor controversy involved in the case, and the importance of civil
rights litigation.
11
In Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691 (9th Cir. 1996),
the Ninth Circuit affirmed a district court’s determination that a 2.0 multiplier to the lodestar
figure applied because of “the extreme undesirability of the case, the likelihood that no other
attorney on island would have accepted the case, and the rare and exceptional nature of the
case, particularly in the small island community of Guam” and “[s]uch an enhancement is
clearly necessary to a reasonable fee where the district court finds that the case is of the type
that attorneys are unwilling to take for fear of ostracization and out of concern for their
personal
safety.” 100 F.3d at 697. Neither Smith’s motion for attorney’s fees nor his brief to
this court provide reasons as to why we should adopt the approach of the Ninth Circuit in
applying their 2.0 enhancement theory.
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Here, Smith claims that the district court erred in awarding $2,500 in
attorney’s fees and costs because the Johnson factors support a more
substantial award. Smith notes that while a district court has the discretion to
reduce the fee award based on the plaintiff’s lack of success, a reduction of
approximately 97.5% is excessive.
“Where a decision awarding attorneys' fees is adequately supported by the
record and the district court has explained its reasons for the award, there is no
abuse of discretion.” Freiler v. Tangipahoa Parish Bd. Of Educ., 185 F.3d 337,
348 (5th Cir. 1999) (citing Strong v. BellSouth Telecomms., Inc.,
137 F.3d 844,
851 (5th Cir.1998)). “Indeed, ‘the most critical factor’ in determining the
reasonableness of a fee award ‘is the degree of success obtained.’” Farrar v.
Hobby,
506 U.S. 103, 114 (1992) (citations omitted). Here, Smith received
nominal damages of one dollar instead of the approximately $650,000 in actual
damages that he sought. Smith’s relatively minor success in this case
accomplished little beyond giving him “the moral satisfaction of knowing that
a federal court concluded that his rights had been violated.” See Hewitt v.
Helms,
482 U.S. 755, 762 (1987).
In this case, the district court “flatly reject[ed]” Smith’s claims for fees and
awarded Smith $2,500. Citing Farrar, the district court reasoned that “when
a plaintiff recovers 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.” 506 U.S. at 115. The district court found that Smith’s
recovery met this description. Nevertheless, the district court considered the
“Johnson factors, the evidence provided by Smith’s counsel, and the arguments
and objections of the parties” and determined that Smith should not be denied
attorney’s fees entirely. Instead, the district court determined that “Smith’s
very limited success, while still recognizing the useful time spent by counsel,
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Case: 10-51236 Document: 00511866524 Page: 16 Date Filed: 05/24/2012
No. 10-51236
the minor controversy involved in this case, and the importance of civil rights
litigation,” entitled Smith to $2,500 in attorney’s fees and costs.
While Smith brought multiple claims against the defendants he succeeded
on only one of them for which he was awarded only nominal damages of one
dollar. Based on the record before us, the district court did not abuse its
discretion in awarding Smith $2,500 in attorney’s fees.
CONCLUSION
Based on the foregoing analysis, the district court’s order granting in-part
and denying in-part Smith’s motion for summary judgment is AFFIRMED.
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