Project Vote/Voting for America, Inc. v. Dickerson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-2403

PROJECT VOTE/VOTING FOR AMERICA, INCORPORATED; JONATHAN
PEZOLD; SIERRA LETO,

Plaintiffs - Appellants,

LISA L. DICKERSON, individually; GLENN M. LITSINGER; OFFICER
MORTON (Badge No. 050); RALIGN T. WELLS, in his official
capacity as Maryland Transit Administration Administrator
and Chief Executive Officer,

Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:07-cv-00092-RDB)

Submitted: August 19, 2011 Decided: August 29, 2011

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Reversed and remanded by unpublished per curiam opinion.

Richard A. Simpson, Kimberly A. Ashmore, Katrina A. Skowron,
WILEY REIN, LLP, Washington, D.C.; Andrew D. Freeman, BROWN,
GOLDSTEIN & LEVY, LLP, Baltimore, Maryland; Deborah A. Jeon,
ACLU FOUNDATION OF MARYLAND, Baltimore, Maryland, for
Appellants. Douglas F. Gansler, Attorney General of Maryland,
Steven M. Sullivan, Assistant Attorney General,
Matthew J. Fader, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Plaintiffs Project Vote/Voting for America, Inc., Jonathan

Pezold and Sierra Leto appeal from a district court order

denying an attorney’s fees award in their 18 U.S.C. § 1983

action against Defendant officials for the Maryland Transit

Administration (“MTA”). The district court granted summary

judgment in favor of Plaintiffs, awarding them nominal damages

of one dollar. Nonetheless, because Plaintiffs received no

equitable relief, the court rejected their later motion for

attorney’s fees. On appeal, Plaintiffs argue that because their

lawsuit successfully vindicated important First Amendment rights

and they received substantially all of their requested relief,

they were entitled to attorney’s fees. We agree, and therefore

reverse and remand the matter to the district court.

This appeal arises out of a civil rights lawsuit brought by

Plaintiffs against the MTA on January 11, 2007. Plaintiffs

alleged that an MTA regulation, which had prevented Plaintiffs

from registering voters at MTA bus and train stations, violated

the First Amendment. On March 27, 2007, the parties filed a

joint motion to place the case on the inactive docket pending

settlement negotiations. As a part of the settlement

negotiations, the MTA agreed to suspend enforcement of the

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challenged regulation and to work with Plaintiffs towards

developing new, replacement regulations. J.A. 29-30. Based on

these representations, the district court closed the case.

Later, dissatisfied with the newly drafted MTA regulations,

Plaintiffs moved to reopen the case on April 3, 2008. The

district court granted Plaintiffs’ motion, and the parties

submitted opposing motions for summary judgment.

On August 28, 2008, the district court granted summary

judgment in favor of Plaintiffs. The court ruled that the

regulations were unconstitutional and awarded Plaintiffs nominal

damages of one dollar, the exact amount requested by Plaintiffs

in the complaint. However, the court found that neither a

declaratory judgment nor an injunction was necessary “given the

binding judicial undertaking by the defendants that the

regulations will not be enforced.” J.A. 107.

After the parties failed to agree on the payment of

attorney’s fees, Plaintiffs moved for fees pursuant to 18 U.S.C.

§ 1988. Defendants opposed that motion. The district court

sided with the MTA, ruling that while Plaintiffs were in fact

the prevailing party, they were not entitled to attorney’s fees.

The court, relying on Farrar v. Hobby, 506 U.S. 103 (1992) and

Mercer v. Duke Univ., 401 F.3d 199 (4th Cir. 2005), held that,

because Plaintiffs received only nominal damages, “the only

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reasonable fee is . . . no fee at all.” Farrar, 506 U.S. at

115. We disagree with the reasoning of the district court.

II.

Section 1988 provides that, in its discretion, a court may

allow the prevailing party in a civil rights lawsuit to recover

reasonable attorney’s fees. 42 U.S.C. § 1988(b). Generally,

“[a] district court’s decision to grant or deny attorney’s

fee[s] under section 1988 is reviewed for abuse of discretion.”

Mercer, 401 F.3d at 203. A district court abuses its discretion

when it makes an “error of law,” Brodziak v. Runyon, 145 F.3d

194, 196 (4th Cir. 1998), or when it “rel[ies] on erroneous

factual or legal premises,” Mid Atl. Med. Servs., LLC v.

Sereboff, 407 F.3d 212, 221 (4th Cir. 2005) (internal quotation

marks omitted).

Plaintiffs were undoubtedly the prevailing party below.

See Farrar, 506 U.S. at 112 (“[A] plaintiff who wins nominal

damages is a prevailing party under § 1988.”). After

determining that Plaintiffs are the prevailing party, courts

must then look to the “the degree of the plaintiff’s overall

success” in determining the reasonableness of a fee award. Id.

at 114 (quoting Hensley v. Eckerhart, 461 U.S. 424 (1983)).

“When a plaintiff recovers only nominal damages because of his

failure to prove an essential element of his claim for monetary

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relief, the only reasonable fee is usually no fee at all.” Id.

at 115. However, in a concurrence, Justice O’Connor set out a

three-factor test to “help separate the usual nominal-damage

case, which warrants no fee award, from the unusual case that

does warrant an award of attorney’s fees,” which this Court

later adopted in Mercer, 401 F.3d at 204 (citing Farrar, 506

U.S. at 120-21 (O’Connor, J., concurring)). The Farrar-Mercer

test instructs us to consider: (1) the degree of the plaintiff’s

overall success, (2) the significance of the legal issue on

which the plaintiff prevailed, and (3) the public purpose served

by the litigation. Farrar, 506 U.S. at 122 (O’Connor, J.,

concurring); Mercer, 401 F.3d at 204.

First, when evaluating a plaintiff’s overall success, we

must compare the form and extent of the relief sought to the

relief the plaintiff actually obtained. Mercer, 401 F.3d at

204. This factor is particularly important where the plaintiff

seeks a large monetary award, but receives only nominal damages

-- as was the case in both Farrar and Mercer. See Farrar, 506

U.S. at 114 (explaining that the “district court . . . is

obligated to give primary consideration to the amount of damages

awarded as compared to the amount sought” (internal quotation

marks omitted)). Likewise, “[i]f a case sought injunctive

relief, the relevant comparison, of course, would be the scope

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of the injunctive relief sought to the relief actually granted.”

Mercer, 401 F.3d at 205.

Here, Plaintiffs sought an injunction, declaratory

judgment, and nominal damages. Plaintiffs recovered nominal

damages, but were denied equitable relief. Plaintiffs assert

that they obtained all the relief they sought from the outset

because the MTA changed its regulations in accordance with a

“binding judicial undertaking.” The MTA argues that its

decision to change its regulations was entirely voluntary.

The district court ruled in favor of the MTA.

Specifically, the court relied on the Supreme Court’s rejection

of the “catalyst theory” for determining whether a plaintiff is

a prevailing party for § 1988 purposes. See Buckhannon Board &

Care Home, Inc. v. West Virginia Dep’t of Health & Human

Services, 532 U.S. 598, 610 (2001). Under the catalyst theory,

several circuits had allowed plaintiffs to recover attorney’s

fees if they could demonstrate that their lawsuit was a

“catalyst” for a defendant’s change in conduct –- regardless of

whether or not the plaintiff ever succeeded on the merits. Id.

at 602. The Supreme Court “ruled that the ‘catalyst theory’ is

not a permissible basis for the award of attorney’s fees.” Id.

at 609-10. The district court found that, in light of

Buckhannon and Plaintiffs’ failure to get an injunction, the

first Farrar-Mercer factor weighed against Plaintiffs.

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However, the district court’s reliance on Buckhannon was

misplaced. First, Buckhannon resolved only the issue of whether

the catalyst theory was an appropriate means of determining if

the plaintiff was a prevailing party. 532 U.S. at 600 (“The

question presented here is whether th[e] term [‘prevailing

party’] includes a party that has failed to secure a judgment on

the merits or a court-ordered consent decree, but has

nonetheless achieved the desired result because the lawsuit

brought about a voluntary change in the defendant’s conduct. We

hold that it does not.”). Since no one disputes that Plaintiffs

were the prevailing party, the district court erred in relying

on Buckhannon. See Benton v. Oregon Student Assistance

Commission, 421 F.3d 901, 907 (9th Cir. 2005) (“Buckhannon did

not address the issue of the factors to be applied in

determining the reasonableness of an attorney’s fee award to a

prevailing party.”). We are aware that the Supreme Court

rejected the catalyst theory in part because it did not wish

district courts to undertake cumbersome, “highly factbound

inquir[ies]” into the “defendant’s subjective motivations, in

changing its conduct,” Buckhannon, 532 U.S. at 609; but

Justice O’Connor’s concurrence in Farrar and our own Mercer

opinion plainly invite district courts to engage in a more

robust inquiry to decide whether a prevailing party that wins

only nominal damages is entitled to any attorney’s fees. See

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Farrar, 506 U.S. at 574 (“Once civil rights litigation

materially alters the legal relationship between the parties,

the degree of the plaintiff’s overall success goes to the

reasonableness of a fee award[.]”).

Further, whether or not Buckhannon is applicable here, the

district court erred when it ignored the actual basis for its

own decision to deny equitable relief at summary judgment. That

decision rested wholly on the reality that an injunction was

unnecessary only because the MTA had already agreed to a

“binding judicial undertaking . . . that the regulations will

not be enforced.” J.A. 107. That “binding judicial

undertaking” was the joint motion, endorsed by the court, which

stated, “As a part of the settlement negotiations, the [MTA] has

agreed that it will take appropriate action to repeal its

current regulations.” J.A. 29-31. It is clear from the

language of the joint motion and the court order granting

summary judgment that the parties had entered into a preliminary

settlement. A plaintiff can be considered a prevailing party

“by virtue of having obtained an enforceable . . . settlement

giving some of the legal relief sought in a § 1983 action.” S–1

and S–2 By and Through P–1 and P–2 v. State Board of Education

of North Carolina, 21 F.3d 49, 51 (4th Cir. 1994) (en banc)

(emphasis added); see also Buckhannon, 532 U.S. at 604 (“[W]e

have held that settlement agreements enforced through a consent

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decree may serve as the basis for an award of attorney’s fees.

Although a consent decree does not always include an admission

of liability by the defendant it nonetheless is a court-ordered

change in the legal relationship between the plaintiff and the

defendant.” (citations and internal alternations and quotations

omitted)). That the settlement was only the beginning of the

parties’ development of a more thorough final agreement is of no

matter. See Hanrahan v. Hampton, 446 U.S. 754, 758 (1980)

(“Congress intended to permit the interim award of counsel fees

. . . when a party has prevailed on the merits of at least some

of his claims.”). The district court’s decision not to award

injunctive relief was based on the fact that the parties had

already reached an agreement as to that aspect of the relief.

That decision did not turn on the court’s judgment as to the

merits of the case. Cf. Farrar, 506 U.S. at 115 (“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.” (emphasis

added)).

Thus, the district court should have “credited” Plaintiffs

for bringing the MTA into a settlement, a “binding judicial

undertaking,” which afforded Plaintiffs most of the equitable

relief sought in the complaint. The first factor therefore

weighs in favor of Plaintiffs.

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We also find that the district court erred in its

application of the second Farrar-Mercer factor. The court

incorrectly held that, in order to recover fees, the issue

presented in the case must be “groundbreaking” or “novel.” J.A.

180-81. A claim need not be novel; instead, “[t]his factor is

concerned with the general legal importance of the issue on

which the plaintiff prevailed.” Mercer, 401 F.3d at 206

(emphasis added). With this in mind, it is well-established

that our First Amendment right to speak freely in public forums

is a significant legal issue. See Goulart v. Meadows, 345 F.3d

239, 248 (4th Cir. 2003) (“[T]he traditional public forum, is a

place that ‘by long tradition or by government fiat ha[s] been

devoted to assembly and debate.’” (quoting Perry Education Ass’n

v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)).

Additionally, Plaintiffs sought to open these public forums as a

means of promoting the right to vote, and we have consistently

held that voter registration restrictions receive strict

scrutiny because such restrictions affect a fundamental right.

See Greidinger v. Davis, 988 F.2d 1344, 1355 (4th Cir. 1993).

The second factor therefore also weighs in favor of awarding

attorney’s fees.

Finally, this litigation served a clear public purpose.

Unlike the plaintiff in Farrar, Plaintiffs never sought any

extravagant or personal financial benefit. Instead, Plaintiffs

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wished only to vindicate our collective First Amendment rights.

See Shaw v. Hunt, 154 F.3d 161, 167 (4th Cir. 1998) (“[R]ecovery

under § 1988 is meant to reward those who have undertaken

successfully to fulfill the role of a private attorney

general.”). While the settlement and receipt of nominal damages

did little for Plaintiffs personally, their victory undoubtedly

signaled to the MTA the importance of ensuring that its

regulations do not intrude upon our most basic constitutional

and democratic rights. See Lippoldt v. Cole, 468 F.3d 1204,

1224 (10th Cir. 2006) (holding that a fee award was justified

because the ruling against the defendants would encourage the

defendants to comply with the First Amendment going forward).

The Supreme Court’s decision not to grant fees in Farrar

was born of its reluctance to reward attorneys for bringing less

than meritorious claims that seek, but fail to obtain, large

monetary judgments or fail to promote a larger public good. See

Farrar, 506 U.S. at 116 (O’Connor, J., concurring) (noting that

the plaintiff filed a lawsuit demanding 17 million dollars, but

“[a]fter 10 years of litigation and two trips to the Court of

Appeals, he got one dollar,” and that such a case is “simply not

the type of victory that merits an award of attorney’s fees.”).

Here, Plaintiffs successfully brought a meritorious civil rights

claim to prevent the enforcement of an unconstitutional

government regulation in the public interest; this is the very

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form of litigation Congress wished to encourage by enacting

§ 1988. See Daly v. Hill, 790 F.2d 1071, 1084 (4th Cir. 1986)

(“[Section] 1988 is intended to encourage [civil rights

plaintiffs] to bring suit by shifting the costs of litigation to

defendants who have been found to be wrongdoers.”). “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.”

Koopman v. Water District No. 1 of Johnson, County, Kansas, 41

F.3d 1417, 1421 (10th Cir. 1994). Accordingly, we must reverse

the district court.

III.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process. For

the reasons stated above, we reverse and remand this matter to

the district court to determine reasonable attorney’s fees.

REVERSED AND REMANDED