IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30379
Summary Calendar
_____________________
THE APARTMENT ASSOCIATION OF GREATER
NEW ORLEANS, INC., JONATHAN JOHNSTON,
JULIE JOHNSTON, RONALD J. REID and
TIMOTHY SPAHR,
Plaintiffs-Appellants,
versus
CITY OF NEW ORLEANS,
Defendant-Appellee.
_______________________________________________________
Appeals from the United States District Court for
the Eastern District of Louisiana
(96-CV-2699-S)
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November 6, 1997
Before REAVLEY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Following the district court’s grant of their Motion for
Summary Judgment, the Apartment Association of Greater New
Orleans, Inc., Jonathan Johnston, Julie Johnston, Ronald Reed and
Timothy Spahr (Association), moved for an award of attorneys’
fees pursuant to 42 U.S.C. § 1988. The district court denied the
*
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this opinion should not be published and is not precedent except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.
motion, and the Association appealed. Finding that the district
court provided
insufficient justification for denying attorneys’ fees, we
reverse and remand for further proceedings.
The Association filed a complaint for declaratory and
injunctive relief on August 16, 1996, challenging the
constitutionality of the City of New Orleans Municipal Ordinance
17.461 (Ordinance), which provides in pertinent part:
All Air Conditioning systems and Water Heaters in
commercial, industrial, and apartment/multi-family
dwelling units shall be subject to [annual or bi-
annual] inspections for installation safety by the
Mechanical Inspection Bureau. . . .
The district court initially granted a preliminary
injunction enjoining the City of New Orleans (City) from
implementing or enforcing the Ordinance. The district court
subsequently granted the Association’s motion for summary
judgment holding that the Ordinance violates the Fourth Amendment
to the United States Constitution which prohibits warrantless
searches of homes except in emergency situations. The district
court asserted that the right to privacy as a separate and
distinct right guaranteed by the substantive component of the Due
Process Clause is a fundamental right which is affected by the
City’s ordinance. The Due Process Clause of the Fourteenth
Amendment prohibits enforcement of laws which infringe
fundamental rights unless the law is narrowly tailored to serve a
compelling state interest. The court found the Ordinance was not
2
narrowly tailored to serve a compelling state interest, and
therefore, unconstitutional.
The Association moved for attorney’s fees under 42 U.S.C. §
1988 which provides that the court, in its discretion, may allow
the prevailing party reasonable attorneys’ fees as a part of the
costs. The district court denied the motion stating that an
award of attorney’s fees was “not appropriate in this case.”
Section 1988 unequivocally and expressly makes the award of
fees a question of discretion for the court, but “the discretion
afforded district courts to deny attorneys’ fees to prevailing
plaintiffs under § 1988 is exceedingly narrow.”1 When a court
finds a statute unconstitutional, “Congress has instructed the
courts to award attorneys’ fees as an incentive for parties who
prevail in protecting important constitutional rights.”2 It is
well established that a prevailing party is entitled to recover
an attorney’s fee unless there is a strong showing of special
circumstances which would render such an award unjust.3 The
courts have interpreted this to mean that “absent special
1
Ellwest Stereo Theatre, Inc. v. Jackson, 653 F.2d 954, 955
(5th Cir. Unit B Aug. 1981).
2
Riddell v. National Democratic Party, 624 F.2d 539, 546 (5th
Cir. 1980)
3
Id. at 543; Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir.
1978); see also Bell v. Schexnayder, 36 F.3d 447 (5th Cir. 1994).
Defendants bear the burden of proving the existence of special
circumstances. Williams v. Miller, 620 F.2d 199 (8th Cir. 1980);
Mid-Hudson Legal Servs., Inc. v. G & U, Inc., 578 F.2d 34 (2d Cir.
1978).
3
circumstances, a prevailing plaintiff should be awarded section
1988 fees as a matter of course.”4 Consequently, two issues must
be determined: (1) was the Association the prevailing party for
purposes of awarding attorneys’ fees; and (2) do special
circumstances exist which would render an award of attorneys’
fees unjust.5
The Supreme Court has concluded that “a plaintiff ‘prevails’
when actual relief on the merits of his claim materially alters
the legal relationship between the parties by modifying the
defendant’s behavior in a way that directly benefits the
plaintiff.”6 In its original Complaint, the Association sought
injunctive and declaratory relief which would prevent the City
from implementing and enforcing the Ordinance. The district
court not only issued an injunction but also granted the
Association’s motion for summary judgment, and held that the
Ordinance impermissibly infringes upon fundamental rights in
violation of the Due Process Clause. The Association gained from
the suit exactly what it sought. The Association clearly is the
prevailing party. The only remaining question is whether special
circumstances exist that would render an award of attorneys’ fees
4
Cruz v. Hauck, 762 F.2d 1230, 1233 (5th Cir. 1985) (quoting
Kirchberg v. Feenstra, 708 F.2d 991, 998 (5th Cir. 1983)(emphasis
in original)).
5
Robinson v. Kimbrough, 652 F.2d 458, 464 (5th Cir. Aug.
1981).
6
Farrar v. Hobby, 506 U.S. 103, 111-12 (1992).
4
unjust. The district court’s order articulated no special
circumstances for denying the Association’s motion for attorneys’
fees. A review of the record does not reveal a special
circumstance which would render an award of attorneys’ fees
unjust.7
The City suggests that a section 1988 award is inapplicable
here because that provision was adopted to allow parties to
vindicate their rights only in cases involving racial animus or
discrimination. There is no authority for this proposition. In
Enplanar, Inc. v. Marsh,8 the constitutional right allegedly
violated involved race discrimination, but the case does not
stand for the proposition that attorneys’ fees are only justified
in race discrimination cases. The court in Enplanar noted that
section 1988 allows fees in actions where parties seek to
vindicate rights based on the federal constitution or federal
statutes. “If it is determined that no constitutional right was
violated the predicate for the award of fees vanishes.”9 That is
not the case here.
The district court’s order is insufficient to justify a
denial of an award of attorneys’ fees and costs to the
7
Riddell, 624 F.2d at 543 (stating that such special
circumstances arise only in unusual situations).
8
11 F.3d 1284 (5th Cir. 1994).
9
Id. at 1297 (quoting McDonald v. Doe, 748 F.2d 1055, 1057
(5th Cir. 1984)).
5
Association. We reverse the order of the district court and
remand the case for further proceedings in accord with this
opinion. An award should include an allowance for fees and costs
incurred for purposes of contesting this order in this appeal.10
REVERSE AND REMAND.
10
Riddell, 624 F.2d at 547 (citing Johnson v. State of
Mississippi, 606 F.2d 635, 637-39 (5th Cir. 1979)).
6