UNPUBLISHED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,
v.
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Reversed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
I.
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
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