Cantu Services, Incorporated v. Melvin Frazier, et

Case: 16-31035 Document: 00513922813 Page: 1 Date Filed: 03/22/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 16-31035 March 22, 2017
Lyle W. Cayce
CANTU SERVICES, INCORPORATED, a Texas Corporation,
Clerk

Plaintiff–Appellant,

v.

MELVIN LEE FRAZIER; RENEE ELLENDER ROBERIE, Individual and
Official Capacity; CURT EYSINK, Individual and Official Capacity; KEVIN
MONK, Individual and Official Capacity; JANELL BOSARGE, Individual
and Official Capacity; MARK S. MARTIN, Individual and Official Capacity,

Defendants–Appellees.

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:12-CV-1292

Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Cantu Services, Inc. (Cantu) sued Renee Ellender Roberie, Curt Eysink,
Kevin Monk, Janell Bosarge, and Mark S. Martin (State Officials), among
others, asserting equal protection and due process claims pursuant to 42
U.S.C. § 1983. After the district court granted summary judgment in favor 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-31035
the State Officials, they moved for attorney’s fees. The district court granted
the motion, and Cantu appealed. We vacate and remand.
I
The State Officials are members of the Louisiana Workforce Commission
(LWC), a state agency tasked, in pertinent part, with “coordinat[ing] and
administer[ing] programs conducted by the state, or jointly with federal
agencies, in the area of . . . blind services.” 1 This case stems from their
involvement in the administration of the Randolph–Sheppard Act (RSA), 2
which Congress enacted to provide economic opportunities for blind persons. 3
The RSA grants priority to blind persons licensed by a state agency in the
selection of operators of vending facilities on federal property. 4 For larger,
more complex vending facility operations, a food service company will often
serve as a “teaming partner” to assist the licensed blind vendor.
For eleven years, Cantu was the teaming partner of Eugene Breaud, the
licensed blind vendor at Fort Polk in Leesville, Louisiana. Breaud died before
the contract term ended, but Cantu, at first alone and then with a temporary
licensed blind vendor, continued to operate the vending facilities at Fort Polk.
After the term ended, the LWC announced that it was seeking applications
from licensed blind vendors for an anticipated new long-term contract to
operate the Fort Polk vending facilities. In the announcement, the LWC stated
that it would assist the selected vendor in choosing a teaming partner. The
LWC selected Defendant Melvin Lee Frazier as its licensed blind vendor for
the anticipated long-term contract. Frazier then notified Cantu through e-mail
that Cantu was his choice for teaming partner.

1 LA. STAT. ANN. § 36:301(B).
2 20 U.S.C. §§ 107-107e.
3 Id. § 107(a).
4 Id. § 107(b).

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No. 16-31035
The LWC contacted Frazier to notify him that there would be a meeting
to select the teaming partner. Cantu, Blackstone Consulting, Inc.
(Blackstone), and a third teaming-partner candidate gave presentations at the
meeting. The LWC contacted Cantu after the meeting to inform Cantu that
the LWC did not acknowledge or approve of the e-mail confirmation sent by
Frazier. Blackstone was ultimately selected to be Frazier’s teaming partner.
Frazier and Blackstone, through the LWC, submitted a proposal to the federal
government and obtained the long-term contract to operate the vending
facilities at Fort Polk. The LWC also notified Cantu that it would not use
Cantu for a proposed “bridge contract,” which would cover the period between
the end of the latest contract extension of the previous long-term contract and
the start of Frazier’s contract term.
Cantu filed suit, asserting equal protection and due process claims
against the State Officials in their official and personal capacities pursuant to
42 U.S.C. § 1983 and a state-law breach of contract claim against Frazier. The
State Officials moved to dismiss Cantu’s claims on the basis that sovereign
immunity applied to the claims asserted against them in their official
capacities and that qualified immunity applied to the claims asserted against
them in their personal capacities. The district court denied the motion as to
the claims asserted against the State Officials in their official capacities and
declined to rule on the remainder of the motion at that time. The State
Officials appealed, and this court reversed, holding that sovereign immunity
barred Cantu’s claims asserted against the State Officials in their official
capacities. 5 Subsequently, the district court converted the State Officials’
motion to dismiss into a motion for summary judgment and dismissed the
claims asserted against the State Officials in their personal capacities.

5 Cantu Servs., Inc. v. Roberie, 535 F. App’x 342, 343 (5th Cir. 2013).
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No. 16-31035
Cantu moved for the district court to reconsider the summary judgment
decision. The district court granted the motion because it “failed to give
express notice to [Cantu] of its intent” to convert the motion. On
reconsideration, the district court again held that the State Officials were
entitled to summary judgment.
The claim against Frazier proceeded to trial, which terminated when the
district court granted Frazier’s motion for judgment as matter of law at the
close of Cantu’s case-in-chief. The district court entered final judgment,
dismissing Cantu’s suit in its entirety. The State Officials moved pursuant to
42 U.S.C. § 1988 for attorney’s fees incurred because of the claims asserted
against them in their personal capacities. The district court granted the
motion, awarding $31,031.00 for the attorney’s fees that the State Officials
incurred after Cantu filed its motion to reconsider as well as for the attorney’s
fees incurred to dismiss Joseph Burton from the suit, another State Official
whom Cantu named as a defendant but never served with a summons and a
copy of the complaint. The district court stated that the attorney’s fees were
for “the frivolous claims brought forth by Cantu.” Cantu appealed the
summary judgment decision and the judgment as a matter of law, both of
which this court has since affirmed. 6 Cantu now appeals the award of
attorney’s fees.
II
We review awards of attorney’s fees for abuse of discretion, reviewing
“the factual findings supporting the grant or denial of attorney’s fees for clear
error and the conclusions of law underlying the award de novo.” 7 “Due to the
district court’s superior knowledge of the facts and the desire to avoid appellate

6 Cantu Servs., Inc. v. Frazier, No. 16-30094, 2016 WL 7396716, at *1 (5th Cir. Dec.
20, 2016).
7 Dearmore v. City of Garland, 519 F.3d 517, 520 (5th Cir. 2008).

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No. 16-31035
review of factual matters, the district court has broad discretion in setting the
appropriate award of attorney[’s] fees.” 8
A
Section 1988 provides that “[i]n any action or proceeding to enforce a
provision of section[] . . . 1983, . . . the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney’s fee as part of the costs.” 9 Although
§ 1988 does not facially distinguish between prevailing plaintiffs and
defendants, the “‘different equitable considerations’ at stake” dictate that
different standards govern the award of attorney’s fees depending on who
prevails. 10 Thus, while prevailing plaintiffs “‘should ordinarily recover an
attorney’s fee’ from the defendant,” 11 prevailing defendants are entitled to
attorney’s fees “only upon a finding that the plaintiff’s action was frivolous,
unreasonable, or without foundation or that the plaintiff continued to litigate
after it clearly became so.” 12 This latter standard insulates defendants from
the monetary strain of “burdensome litigation having no legal or factual
basis.” 13 We generally consider whether the plaintiff “established a prima facie
case, whether the defendant offered to settle, and whether the court dismissed
the case or held a full trial” 14 to be “factors important to frivolity
determinations.” 15
To contend that the district court abused its discretion by determining
that Cantu’s claims are frivolous, Cantu largely relies on a technical claim that

8Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).
942 U.S.C. § 1988(b).
10 Fox v. Vice, 563 U.S. 826, 833 (2011) (quoting Christiansburg Garment Co. v. Equal

Emp’t Opportunity Comm’n, 434 U.S. 412, 419 (1978)).
11 Id. (quoting Christiansburg, 434 U.S. at 416).
12 Mylett v. Jeane, 910 F.2d 296, 299 (5th Cir. 1990).
13 Fox, 563 U.S. at 833 (quoting Christiansburg, 434 U.S. at 420).
14 Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999).
15 United States v. Mississippi, 921 F.2d 604, 609 (5th Cir. 1991).

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No. 16-31035
the State Officials were not authorized to participate in the teaming-partner
selection process. This is so, Cantu argues, because federal regulation
makes “[p]olicy formulation and implementation” for vocational rehabilitation
services the non-delegable “responsibility of the designated State unit,” 16 of
which Cantu contends the State Officials are not a part. Cantu has also
asserted that the State Officials are not part of the State Licensing Agency, a
position that, as the district court noted, directly contradicted Cantu’s
complaint.
Cantu has not, however, asserted why these arguments matter. In its
complaint, Cantu alleged that the State Officials violated its Fourteenth
Amendment equal protection and due process rights; it did not assert a claim
based on a purported violation of a federal regulation. Cantu’s appellate
briefing does not contain a single citation to an equal protection or due process
case, nor does it contain any substantive argument beyond a reiteration of its
allegations and causes of action and a conclusory assertion that it had a “good
faith basis in alleging equal protection and due process violations by the State
Officials.” We cannot conclude from these undeveloped assertions, an alleged
regulatory violation, the page length of the district court’s summary judgment
decision, and the fact that the district court set deadlines for summary
judgment briefing that the district court abused its discretion in determining
that Cantu’s claims are frivolous, as Cantu urges. Cantu has not provided an
adequate basis upon which we could determine that the district court abused
its discretion.
Cantu has not argued that the district abused its discretion by
determining that the attorney’s fees incurred to dismiss Burton from the suit

16 See 34 C.F.R. § 361.13(c).
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No. 16-31035
were the result of Cantu’s frivolous claims. Accordingly, we do not disturb the
district court’s ruling in this respect. 17
B
Section 1988 allows for the recovery of “a reasonable attorney’s fee,” 18
which is derived through “a two-step method.” 19 The first step is to calculate
the lodestar, “which is equal to the number of hours reasonably expended
multiplied by the prevailing hourly rate in the community for similar work.” 20
“In calculating the lodestar, ‘[t]he court should exclude all time that is
excessive, duplicative, or inadequately documented.’” 21 “[T]here is a ‘strong
presumption’ that the lodestar figure is reasonable.” 22
The second step is to assess the factors articulated in Johnson v. Georgia
Highway Express, Inc. 23 to determine whether an adjustment to the lodestar
is warranted. 24 Although “a district court must provide ‘a reasonably specific
explanation for all aspects of a fee determination,’” 25 the district court is not
required “to recite or even mention the Johnson factors, so long as ‘the record

17 United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (per curiam) (“It has
long been the rule in this circuit that any issues not briefed on appeal are waived.”).
18 42 U.S.C. § 1988(b) (emphasis added).
19 Combs v. City of Huntington, 829 F.3d 388, 391 (5th Cir. 2016).
20 Id. at 392 (quoting Jimenez v. Wood County, 621 F.3d 372, 379 (5th Cir. 2010), aff’d

en banc, 660 F.3d 841 (5th Cir. 2011) (reinstating the part of the panel opinion addressing
attorney’s fees)).
21 Id. (quoting Jimenez, 621 F.3d at 379-80).
22 Perdue v. Kenny A. ex rel Winn, 559 U.S. 542, 554 (2010).
23 488 F.2d 714, 717-19 (5th Cir. 1974) (setting forth the following twelve factors: (1)

the time and labor required; (2) the novelty and difficulty of the issues in the case; (3) the
skill requisite to perform the legal services properly; (4) the preclusion of other employment
by the attorney due to acceptance of the case; (5) the customary fee charged for those services
in the relevant community; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case;
(11) the nature and length of the professional relationship with the client; and (12) awards
in similar cases).
24 Combs, 829 F.3d at 392.
25 Moench v. Marquette Transp. Co. Gulf-Inland, 838 F.3d 586, 596 (5th Cir. 2016)

(quoting Perdue, 559 U.S. at 558).
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No. 16-31035
clearly indicates that the district court has utilized the Johnson framework as
the basis for its analysis.’” 26
In determining reasonable attorney’s fees, the district court is not
required “to achieve auditing perfection,” as “[t]he essential goal in shifting
fees (to either party) is to do rough justice.” 27 District courts may “take into
account their overall sense of a suit, and may use estimates in calculating and
allocating an attorney’s time.” 28 Indeed, as the Supreme Court has noted,
there is hardly “a sphere of judicial decisionmaking in which appellate
micromanagement has less to recommend it.” 29 Nevertheless, a district court’s
discretion to set a reasonable attorney’s fee, although broad, “is not
unlimited.” 30
The district court determined that the “State Officials[’] [counsel]
charged an hourly rate of $130,” which it stated is comparable to the rate in
that community. As the State Officials admit, the average hourly rate charged
by the attorneys for the State Officials’ was not precisely $130, resulting in a
slightly larger fee than the one actually incurred. But, as noted, we require
rough justice, not auditing perfection, and the district court did not clearly err
by determining that $130 is comparable to the rate in the community. The
district court also listed the Johnson factors and specifically noted that the
factors did not justify any alteration to the lodestar hourly rate, clearly
indicating that the district court used the Johnson framework as the basis for
its analysis.

26 Id. (quoting Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 642 (5th
Cir. 2012)).
27 Fox v. Vice, 563 U.S. 826, 838 (2011).
28 Id.
29 Id.
30 Perdue, 559 U.S. at 558.

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No. 16-31035
Although Cantu has not asserted that the district court abused its
discretion by awarding attorney’s fees in connection with the motion to dismiss
Burton, the State Officials have conceded that “it appears fees for litigat[ing]
Joseph Burton’s Motion to Dismiss should not have been awarded” because
“Burton was not a party to the State Officials’ motion for Attorney’s Fees or
this appeal.” We accordingly vacate the award of attorney’s fees and remand
so that the district court may consider this in the first instance.
Because we are remanding, we do not consider Cantu’s contention on
appeal that the district court did not determine whether the number of hours
recorded by attorneys for the State Officials was excessive or duplicative, nor
do we consider Cantu’s contention on appeal that the district court awarded
attorney’s fees incurred prior to Cantu’s claims clearly becoming frivolous. On
remand, we are confident that the district court will address these contentions
and articulate “a reasonably specific explanation” for each aspect of the fee
determination. 31
III
Cantu additionally appealed the district court’s denial of its motion for
review of the taxation of costs in favor of the State Officials and Frazier “solely”
for the avowed “purpose[] of preserving for appeal the issue of whether” the
State Officials and Frazier “are in fact prevailing parties.” Because another
panel of this court has affirmed the district court’s summary judgment decision
and judgment as a matter of law, 32 the district court did not err in denying
Cantu’s motion for review of the taxation of costs in favor of the State Officials
and Frazier.
* * *

31Id.
32Cantu Servs., Inc. v. Frazier, No. 16-30094, 2016 WL 7396716, at *1 (5th Cir. Dec.
20, 2016).
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No. 16-31035
For the foregoing reasons, we VACATE and REMAND for proceedings
consistent with this opinion.

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