IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT Fifth Circuit
FILED
October 23, 2007
No. 06-10123
Charles R. Fulbruge III
Clerk
KAREN JO BARROW,
Plaintiff-Appellee,
Cross Appellant,
versus
GREENVILLE INDEPENDENT SCHOOL DISTRICT; ET AL.,
Defendants,
DR. HERMAN SMITH,
Defendant-Appellant,
Cross Appellee.
Appeals from the United States District Court
for the Northern District of Texas
(00-CV-913)
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:*
In the third appeal resulting from this case,
defendant–appellant Dr. Herman Smith (Smith) challenges the
district court’s judgment entered after a jury verdict 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should not be published and is not precedent except under the limited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.
plaintiff–appellee Karen Jo Barrow (Barrow). Smith presents three
arguments against the judgment, contending that: first, the
district court erroneously applied a heightened level of scrutiny
in analyzing the constitutionality of the state action at issue in
this case; second, the district court erred in deciding to award
Barrow attorneys’ fees; and third, the district court erred when it
ruled that Smith’s $30,000.00 joint offer of judgment with
codefendant Greenville Independent School District (GISD) and his
later $100,000.00 offer, both made pursuant to Federal Rule of
Civil Procedure 68, were ineffective to invoke Rule 68's provision
requiring certain offerees to pay post-offer costs.
Barrow cross-appeals, arguing that the district court erred in
determining the prevailing market rate for Barrow’s attorneys and
in making downward adjustments to Barrow’s attorneys’ hours.
For the reasons set forth below, we affirm.
FACTS AND PROCEEDINGS BELOW1
During the summer of 1998, Barrow was employed as a teacher by
GISD, where Smith was then a superintendent. Barrow’s children
were enrolled in the Greenville Christian School, a private
religious school.
That summer, an assistant principal position at a middle
school became open at GISD, and Barrow applied for the job. In May
1
We have previously chronicled the facts and proceedings of this case.
See Barrow v. Greenville Indep. Sch. Dist. (Barrow II), 480 F.3d 377, 379–80
(5th Cir. 2007), cert. denied, U.S. LEXIS 11047 (U.S. Oct. 1, 2007) (No. 07-
59).
2
of 1998, at Smith’s direction, a senior school official approached
Barrow and asked whether she would move her children to the public
schools so that she could be considered for the assistant principal
position. Barrow responded that she was very much interested in
becoming an assistant principal, but she would not remove her
children from their private religious school.
After Barrow’s name was included in the applicant pool, Smith
directed the assistant superintendent for personnel to see if
Barrow would move her children to public school. She would not,
and GISD hired another person for the assistant principal position.
Smith later told Barrow and her husband that he had not recommended
Barrow for the position because their children attended private
school.
Barrow filed this suit in 2000 under 42 U.S.C. § 1983,
alleging that Smith violated her constitutional rights by refusing
to consider her for the assistant principal position because Barrow
would not move her children from the private Christian school into
a GISD school.
Smith moved for summary judgment based on his assertion that
he was entitled to qualified immunity, permitting the court to
assume for the purpose of his motion that he decided not to promote
Barrow at least in part because she chose to educate her children
in a private school. The district court granted Smith’s motion,
finding him entitled to qualified immunity after concluding that
3
the law was not clearly established regarding public school
employees’ constitutional right to send their children to a private
school. We reversed the district court’s grant of summary judgment
to Smith in this case’s first appearance before this court. Barrow
v. Greenville Indep. Sch. Dist. (Barrow I), 332 F.3d 844 (5th Cir.
2003).
After this court decided Barrow I, the district court and
parties agreed to refer the case for non-binding arbitration
concerning the issue of attorneys’ fees. On July 27, 2004, the
district court judge presiding over the non-binding arbitration
recommended that Barrow’s fee request be denied in its entirety or,
alternatively, drastically reduced.
At trial, Barrow asserted two claims against Smith: a
religious rights claim and a parental rights claim. On March 25,
2005, after a two-week trial, the jury reached its verdict. It
rejected Barrow’s religious rights claim, but found in her favor on
her parental rights claim. The jury awarded Barrow $15,455.00 in
compensatory damages and $20,000.00 in punitive damages against
Smith. Barrow lost all claims against GISD.
Barrow and Smith both filed post-judgment motions, but the
district court denied all of these. On December 20, 2005, the
district court awarded Barrow $631,293.00 in attorneys’ fees and
$22,775.22 in expenses and taxable court costs.
Smith filed notice of appeal on January 12, 2006. Barrow
4
cross-appealed.
DISCUSSION
I. Level of Scrutiny
To withstand strict scrutiny, a state must show that its
challenged action “necessarily relate[s] to a compelling state
interest.” Kite v. Marshall, 661 F.2d 1027, 1030 (5th Cir. 1981).
Conversely, the rational basis test requires only that the
challenged state action “rationally promote a legitimate
governmental objective.” Id. “A state action viewed under the
rational basis banner is presumed to be valid,” and the party
challenging the state action must show that it is completely
arbitrary. Id.
Smith argues on appeal that the district court erroneously
applied strict scrutiny when it should have used the rational basis
test to analyze Barrow’s parental rights claim. Specifically, he
argues that because the jury rejected Barrow’s religious rights
claim, there was no justification for applying a level of scrutiny
greater than rational basis. Under the rational basis test, Smith
asserts, the district court should have entered judgment in his
favor. We review constitutional questions de novo. United States
v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).
In Barrow I, we disagreed with the district court’s conclusion
that the law on public school employees’ constitutional right to
send their children to a private school was not clearly
5
established, and reversed the district court’s judgment. 332 F.3d
at 846; see id. at 848 (stating that “the constitutional right of
public-school employees to select a private-school education for
their children was clearly established when Smith refused to
consider Barrow for the position of assistant principal”). In
reaching our decision to reverse in Barrow I, we relied heavily on
two of this court’s previous opinions: Brantley v. Surles (Brantley
I), 718 F.2d 1354 (5th Cir. 1983), and Fyfe v. Curlee, 902 F.2d
401 (5th Cir. 1990). See Barrow I, 332 F.3d at 847–48 (discussing
Brantley I and Fyfe).
In Brantley I, the plaintiff Brantley brought suit under 42
U.S.C. § 1983 against the superintendent of education and board of
education in Montgomery County, Mississippi, alleging that they
violated her constitutional rights to direct her child’s education
by firing her from her position as a public school cafeteria worker
“for the sole reason that her son attended a private academy rather
than the local public school.” 718 F.2d at 1355. Unlike in the
present case, there was no suggestion that the plaintiff’s decision
to send her son to private school was based on religion; Brantley
had transferred her son from a public high school to a private,
segregated academy in hopes that he “would have a better chance of
playing varsity sports at the academy.” Id. at 1355–56. This
court deemed that the decision to transfer Brantley’s son to
private school fell under the umbrella of the Constitution’s
6
guarantee of familial privacy, id. at 1359, but we recognized that,
“[i]n the realm of public school employment, the court must balance
the interests of the school employee with the interest of the state
in promoting efficiency in the educational services which it
provides through its school employees.” Id. The panel explained,
“The state may legitimately interfere with the constitutionally
protected conduct of a public school employee whenever that conduct
materially and substantially impedes the operation or effectiveness
of the educational program.” Id. Accordingly, the judgment was
reversed and the case remanded to the district court to determine,
first, whether Brantley’s son’s enrollment in private school
“materially and substantially interfered with the operation or
effectiveness of the educational program” at Brantley’s school.
Id. The panel directed the district court to also determine
“whether the protected activity played a substantial part in the
board’s discharge decision,” and that if it did, whether Brantley
“would have been fired anyway for reasons completely independent of
the private school enrollment decision.” Id.
Brantley’s case appeared before this court again in Brantley
v. Surles (Brantley II), 765 F.2d 478, 479 (5th Cir. 1985) (per
curiam), after the district court determined on remand that
Brantley was fired from her job for nondiscriminatory reasons. We
reversed and remanded again after concluding that the ostensible
reason for Brantley’s discharge—a disrespectful remark made about
7
a board of education member—could not have been the basis for her
discharge. Id. at 481–82. But we agreed with the district court’s
determinations that the private school education of Brantley’s son
played a substantial part in the board’s decision to fire Brantley,
and that there was “no evidence that the enrollment of Brantley’s
son in the private school materially and substantially interfered
with the operation or effectiveness of the educational program at
the public school.” Id. at 480. The local superintendent of
education had testified that interracial dissension might occur
after Brantley’s son withdrew to enroll in a private, segregated
school, but the superintendent’s belief was unsupported “by any
objective evidence.” Id.
In Fyfe v. Curlee, the plaintiff Fyfe was a secretary to a
public elementary school principal when she enrolled her daughter
in a private, all-white academy. 902 F.2d at 402. Like the
plaintiff in the Brantley cases, Fyfe’s reasons for selecting a
private education for her child were unrelated to religion; she and
her husband were concerned about her daughter’s experiences with
another white child at the public school and thought that her
daughter would be happier at the private academy. Id. Around the
time of Fyfe’s decision to enroll her daughter in private school,
black citizens began boycotting local businesses, primarily “to put
pressure on the school system to increase the number of black
teachers and administrators.” Id. The local school
8
superintendent encouraged Fyfe to resign. Id. When Fyfe refused,
he transferred her to a newly created, undesirable job. Id. at
402–03. Fyfe filed suit under section 1983, alleging retaliation
against her for exercising her constitutional right to enroll her
daughter in private school. Id. at 402. This court concluded
that, by transferring her to a menial position, the school district
had violated Fyfe’s First and Fourteenth Amendment rights. Id. at
405. The question then became whether the record revealed that
Fyfe’s “protected conduct of enrolling her child in a private
school was detrimental to the effecient operation of the [] school
system.” Id. We made clear that this analysis—which requires
balancing the interest of the school employee with that of the
state in promoting efficiency in educational services—“is to be
conducted by the court as a matter of law, not fact,” id., and that
the defendant state shoulders the burden to show that the child’s
enrollment in private school harms the public school system. See
id. at 406 (because defendant had failed to demonstrate that its
interference with the plaintiff’s parental rights was necessary for
the efficient operation of the school system, plaintiff prevailed
as a matter of law). We concluded that the state had “failed to
demonstrate that its action in reassigning Mrs. Fyfe was necessary
to the smooth and efficient operation of the school system.” Id.
at 406. We explained:
“[T]he school district produced no evidence of
9
substantial interference with its effectiveness as a
result of Mrs. Fyfe’s enrollment of her daughter in
private school . . . . The record is completely silent
on any effect Shannon Fyfe’s move to the private school
had on the appellee school district. This court held in
the second appeal in Brantley that belief alone of such
interference ‘unsupported by any objective evidence’ is
not sufficient to demonstrate material interference to
carry the balancing test for the school district.
Brantley v. Surles, 765 F.2d 478, 480 (5th Cir. 1985).”
Id. at 405.
Our analysis was unchanged by the fact that a boycott of local
businesses had been threatened in case a public school employee
enrolled his or her child in a private, segregated school. There
was no evidence that this possibility of a boycott was related to
Fyfe, or that it impeded the school system’s operation:
“No causal link was ever made in the district court
between the threatened school boycott and Mrs. Fyfe’s
action. When asked on cross-examination whether she was
aware that one of the demands of the boycotting group was
‘that the school system not employ anybody who does now
or ever has had a child in a private segregated academy,’
the plaintiff responded that she had read about that in
the paper. The mere fact that this demand was made on
the school system however cannot be sufficient to
demonstrate that Mrs. Fyfe’s enrollment of her daughter
at a private school caused substantial and material
interference with the school system’s operation and
effectiveness.” Id. at 405.
When the instant case first appeared before a panel of this
court in Barrow I, we relied on the Brantley and Fyfe cases for
certain principles. For example, we stated in Barrow I that those
cases clarified that “public-school employees like Barrow have a
protected right to educate their children in private school,” 332
F.3d at 848, and that this public school employee right was clearly
10
established when Smith refused to consider Barrow for the assistant
principal position. Id. Most important to the instant appeal, in
Barrow I, we relied on the Brantley and Fyfe cases in declaring
that a “state cannot take an adverse employment action against a
public-school employee for exercising this right [to educate his or
her child in private school] unless it can prove that the
employee’s selection of private school materially and substantially
affects the state’s educational mission.” Id.
Because we had unequivocally declared in Barrow I the state’s
burden to show Barrow’s enrollment of her children in private
school caused detriment to its educational mission, we found it
unnecessary to address in the opinion from that appeal the question
of the degree of scrutiny to be applied to a state’s adverse action
against a public school employee for sending his or her child to a
private school. Id. at 849 n.20. We found it to be an unnecessary
analysis because, regardless of the level of scrutiny applied, it
was still incumbent on the defendant to show that Barrow’s
selection of school for her children had an injurious effect on the
operations of the public school system that employed her. If the
defendant failed to meet that burden, its defense would be a
nonstarter. We explained:
“[W]e express no opinion on the particular degree of
scrutiny a state action must undergo to withstand a
challenge to its constitutionality in a case like this
one. Instead, we simply recognize that the state cannot
strip its school employees of the right to choose a
private-school education for their children without
11
proving that the unfettered exercise of this right will
undermine a state interest. Barrow and amici curiae
argue that any state action that interferes with this
right is subject to strict scrutiny. We need not take up
this question today. In the absence of objective proof
that Barrow’s choice of a private-school education for
her children will undermine a state interest the
district’s patronage policy fails irrespective of the
degree of scrutiny applied.” Id. (emphasis added).2
Having found that Barrow asserted a constitutionally protected
right, and that Smith interfered with that right, Barrow would
prevail if the defendants did not show that the interference was
required for the smooth and efficient operations of the school
system. This was the effect of our reliance in Barrow I on
Brantley and Fyfe.
Smith argues that requiring defendants in a case with facts
such as these to show that the public school employee’s choice of
a private school education for their children impeded with the
public school system’s operations constitutes strict scrutiny of
the defendant school board’s actions. Smith asserts that Barrow is
not entitled to this degree of scrutiny without a religious
component to her claim, and Smith contends that any possibility of
such a religious component was eradicated when the jury found that
Barrow’s religious rights were not violated.
2
We likewise made clear in Barrow I that we did not need to decide
whether the right asserted by the plaintiff fell under the First Amendment or
the Due Process Clause of the Fourteenth Amendment because, regardless, the
defendant had the burden of showing that the enrollment of Barrow’s children
in private school impeded school operations. See 332 F.3d at 846–47
(considering together three claims asserted by Barrow because “at bottom all
aver that Barrow, a public-school employee, has a constitutionally-protected
right to select a private-school education for her children”).
12
One might argue that because the jury found that religious
rights were not violated, there is no religious component in this
case. In this case’s second appearance before this court, Barrow
v. Greenville Independent School District (Barrow II), 480 F.3d 377
(5th Cir. 2007), cert. denied, U.S. LEXIS 11047 (U.S. Oct. 1, 2007)
(No. 07-59), Barrow unsuccessfully challenged the district court’s
grants of summary judgment in favor of GISD. 480 F.3d at 380.
While the Barrow II opinion largely focuses on Barrow’s argument
that Smith was a policymaker and that therefore GISD was liable for
his unconstitutional conduct, see id. at 380–82, we also addressed
Barrow’s contention that the district court improperly granted
summary judgment in favor of GISD on her religious discrimination
claim. See id. at 382–83. We agreed with the district court that
Barrow had not produced sufficient evidence to show that GISD’s
employment practices result in a significant disparity between
those who are religious and those who are not. Id. at 383. We
stated further:
“The record evidence, read in the light most favorable to
Barrow, supports the district court’s conclusion that
Smith did not recommend Barrow because her children were
not attending the public schools, not because her
children were attending a religious school. There is no
probative evidence that Smith’s decision had any impact
upon any First Amendment-protected freedom.” Id.
Assuming, then, that Barrow II removes the possibility of a
religious element to Barrow’s claims, Smith relies on several cases
for the proposition that the appropriate level of scrutiny to be
13
applied to state actions interfering with parental rights—where
there is no religious element—is rational basis. In particular,
Smith cites the United States Supreme Court’s decision in Wisconsin
v. Yoder, 92 S.Ct. 1526 (1972), and two previous opinions of this
court: Kite v. Marshall, 661 F.2d 1027 (5th Cir. 1981), and
Littlefield v. Forney Independent School District, 268 F.3d 275
(5th Cir. 2001).
In Kite v. Marshall, a case decided before the Brantley cases
and Fyfe v. Curlee, plaintiffs challenged a regulation requiring
that any high school student who attended certain summer sports
training camps be suspended temporarily from varsity athletic
eligibility. 661 F.2d at 1028. Various reasons supported the
rule: “the need to control over-zealous coaches, parents and
communities, the achieving of a competitive balance between those
who can afford to attend summer camp and those who cannot, the
avoidance of various excessive pressures on students, and the
abrogation of the use of camps as recruiting mechanisms.” Id. at
1030. The district court declared the rule unconstitutional, but
this court reversed, finding that it did not violate either the due
process clause or equal protection clause of the Fourteenth
Amendment. Id. at 1028. We determined that the rule did not
implicate any fundamental constitutional right, and that therefore
the appropriate level of scrutiny was rational basis. Id. at 1029,
1030.
14
In Littlefield v. Forney Independent School District,
individual students and parents of students challenged a district-
wide mandatory uniform policy. 268 F.3d at 279. Specifically, the
parents contended that the compulsory uniform policy violated their
constitutional right to control their children’s education in
violation of the Fourteenth Amendment. Id. at 282. The parents
argued that their right to control their children’s education was
a fundamental right and that therefore the court should apply
strict scrutiny in analyzing the school uniform policy. Id. at
288. We disagreed, declining to find a “fundamental right for
parents to control the clothing their children wear to public
schools.”3 Id. at 289. We analyzed the asserted parental right
under a rational-basis standard. Id.
While both Kite and Littlefield employ a rational basis
standard to analyze state interference with parental rights, those
cases are distinguishable from the instant case. Kite and
Littlefield address policies relating to what goes on at the public
school: ineligibility to participate in school varsity athletics if
certain types of summer sport camps are attended, and a district-
wide compulsory school uniform policy. The defendant Smith’s
3
We explained:
“While Parents may have a fundamental right in the upbringing and
education of their children, this right does not cover the
Parents’ objection to a public school Uniform Policy. It has long
been recognized that parental rights are not absolute in the
public school context and can be subject to reasonable
regulation.” 268 F.3d at 291.
15
stance toward Barrow’s decision to educate her children in private
school does not in any way relate to what occurs at a GISD-operated
public school. Stated differently, a rule requiring public school
employees to enroll their children in public schools is simply more
invasive of parental rights and less clearly tied to the public
school’s management of its students and educational program than
the Kite and Littlefield rules addressing school varsity athletics
eligibility and school uniforms. Kite and Littlefield are
distinguishable, and they are not controlling in this case.
Nevertheless, we acknowledge that it is possible to argue that
without a situation akin to that in Wisconsin v. Yoder, 92 S.Ct.
1526, only rational basis—and not strict scrutiny—should be applied
in evaluating a state action that imposes requirements on parental
decisions regarding education. In Yoder, respondents had been
charged, tried, and convicted of violating the State of Wisconsin’s
compulsory school-attendance law that required parents to send
their children to attend public or private school until the
children reached 16 years of age. 92 S.Ct. at 1529. The
respondents, two members of the Old Order Amish religion and one
member of the Conservative Amish Mennonite Church, had declined to
send their 14 and 15 year-old children to public school after they
completed the eighth grade, and the children were not enrolled in
any private school, nor did they meet any applicable exception to
the Wisconsin statute. Id. The United States Supreme Court
16
stated:
“[I]n order for Wisconsin to compel school attendance
beyond the eighth grade against a claim that such
attendance interferes with the practice of a legitimate
religious belief, it must appear either that the State
does not deny the free exercise of religious belief by
its requirement, or that there is a state interest of
sufficient magnitude to override the interest claiming
protection under the Free Exercise Clause.” Id. at 1532.
The Court found that, in the respondents’ case, enforcement of the
compulsory school-attendance law after the eighth grade “would
gravely endanger if not destroy the free exercise of respondents’
religious beliefs,” and the focus of its analysis thus turned to
whether the state interest was sufficient to override the
respondents’ religious-based interest in declining to send their
children to public school after the eighth grade. Id. at 1535.
The Court made clear its analysis was more rigorous than the
rational-basis test: “[W]hen the interests of parenthood are
combined with a free exercise claim of the nature revealed by this
record, more than merely a ‘reasonable relation to some purpose
within the competency of the State’ is required to sustain the
validity of the State’s requirement under the First Amendment.”
Id. at 1542. The Court concluded that the State of Wisconsin was
precluded from forcing the respondents to send their children to
formal school until the age of 16 by the First and Fourteenth
Amendments. Id. Thus, Yoder arguably supports Smith’s contention
that heightened scrutiny is appropriate only where the state action
also adversely affects free exercise of religion, which the jury
17
verdict in this case makes clear is no longer at issue.
Even if we agree with Smith, however, that Yoder represents
the only possible basis for a heightened level of scrutiny in cases
dealing with state interference of parental rights, it remains the
school district’s burden to show that Barrow’s decision to send her
children to private school had a materially adverse effect on the
public school district. This is so because Barrow I renders that
the law of the case.
Under the law of the case doctrine, “[o]nce a panel of this
court has decided an issue of law or fact, the decision continues
to govern all subsequent stages of the same case.” Free v. Abbott
Labs., Inc., 164 F.3d 270, 272 (5th Cir. 1999). This holds true to
explicitly decided issues as well as “everything decided ‘by
necessary implication.’” In re Felt, 255 F.3d 220, 225 (5th Cir.
2001) (quoting Browning v. Navarro, 887 F.2d 553, 556 (5th Cir.
1989)). The law of the case doctrine is “necessary to bring
finality to litigation.” Free, 164 F.3d at 272. Application of
the doctrine is discretionary, but barring exceptional
circumstances this court will generally decline to revisit an issue
previously decided by another panel in the same case. Id.; see
also United States v. Slanina, 359 F.3d 356, 358 (5th Cir. 2004)
(per curiam) (noting that this court follows its prior decisions
without re-examination unless, for example, the earlier decision
was “dead wrong”). There are no such exceptional circumstances
18
warranting our reconsideration of the panel’s decision in Barrow I.
It is true that at the time of Barrow I we were faced with a
summary judgment motion and therefore had to give Barrow the
benefit of the doubt on her religious rights claim, while
subsequently the jury verdict and Barrow II took that claim out of
consideration. However, it remains the law of the case that Barrow
I relied on the Brantley and Fyfe cases, which—as we noted
above—did not have a religious element, and Barrow I expressly held
that the requirements of those cases obtained regardless of the
level of scrutiny and regardless of whether First Amendment
religious rights or merely more general due process parental rights
were involved. We held in Barrow I that those Brantley and Fyfe
opinions were controlling, and the law of the case requires that we
adhere to that prior holding herein.
II. Attorneys’ Fees
Smith faults the district court for acting against the non-
binding arbitration recommendation and awarding Barrow attorneys’
fees under 42 U.S.C. § 1988.4 Barrow, meanwhile, cross-appeals,
contending that the district court’s award of attorneys’ fees was
4
Subsection (b) of 42 U.S.C. § 1988, “Proceedings in vindication of
civil rights,” provides that in actions to enforce section 1983, a court “may
allow the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs . . . .”
“Section 1988 ‘is a tool that ensures the vindication of important
rights, even when large sums of money are not at stake, by making attorney’s
fees available under a private attorney general theory.’” Hopwood v. Texas,
236 F.3d 256, 278 (5th Cir. 2000) (quoting Farrar v. Hobby, 113 S.Ct. 566, 578
(1992) (O’Connor, J., concurring)).
19
the result of improper reduction. We disagree with both parties
and affirm the district court’s award of fees.
As we have previously stated, “We cannot overemphasize the
concept that a district court has broad discretion in determining
the amount of a fee award.” Associated Builders & Contractors of
Louisiana, Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374, 379 (5th
Cir. 1990). While we review the award of attorneys’ fees for abuse
of discretion, “[u]nderlying questions of fact are reviewed for
clear error.” Adams v. Unione Mediterranea di Sicurta, 364 F.3d
646, 656 (5th Cir. 2004). Such subsidiary factual questions
include determinations of “whether the reported hourly rate is
reasonable and whether the reported tasks are duplicative or
unrelated to the purposes of the law suit.” Associated Builders &
Contractors of Louisiana, Inc., 919 F.2d at 379. The breadth of
discretion accorded to the district court in awarding attorneys’
fees is appropriate given that “[a]ppellate courts have only a
limited opportunity to appreciate the complexity of trying any
given case and the level of professional skill needed to prosecute
it.” Hopwood v. Texas, 236 F.3d 256, 277 (5th Cir. 2000); see also
Associated Builders & Contractors of Louisiana, Inc., 919 F.2d at
379 (stating that the district court’s broad discretion is
“‘appropriate in view of the district court’s superior
understanding of the litigation and the desirability of avoiding
frequent appellate review of what essentially are factual matters’”
20
(quoting Hensley v. Eckerhart, 103 S.Ct. 1933, 1941 (1983))).
The district court thoroughly evaluated and considered the
propriety of the attorneys’ fees award. In its memorandum opinion
and order dated December 20, 2005, the district court discussed for
over fifty pages its reasons for the attorneys’ fees award. Given
the district court’s impressively careful and thorough
consideration of this issue, we cannot conclude that the court
abused its discretion. Cf. Associated Builders & Contractors of
Louisiana, Inc., 919 F.2d at 379 (declaring the abuse of discretion
standard possible only where the district court has provided a
concise and clear explanation for its award of fees).
III. Offers of Judgment
Lastly, Smith also contends that the district court erred when
it ruled that his Rule 68 offers of judgment were ineffective. At
issue are two offers of judgment: one made jointly by codefendants
Smith and GISD for $30,000.00, and one by Smith only for
$100,000.00. Smith argues that in regards to the $30,000.00 joint
offer, the district court should have compared the offer to the
recovery Barrow obtained against both Smith and GISD, which Smith
argues would make the offer amount greater than Barrow’s recovery
because the amount Barrow was ordered to pay GISD—or
$14,492.65—should be subtracted from her recovery of $35,455.00
from Smith. In relation to his $100,000.00 offer, Smith argues
that the district court incorrectly concluded that Barrow’s
21
attorneys’ fees and court costs, together with her recovery, were
such that they defeated the larger offer. Both of Smith’s
arguments result in his conclusion that he should not be liable for
Barrow’s post-offer costs or fees and that he should be able to
recover his costs from Barrow.
Federal Rule of Civil Procedure 68 “permits defendants in an
action to present an offer of judgment to the plaintiffs at any
time more than 10 days before trial; the plaintiff has 10 days in
which to unconditionally accept the offer.” Ramming v. Natural Gas
Pipeline Co. of Am., 390 F.3d 366, 370 (5th Cir. 2004). Rule 68
states in pertinent part:
“At any time more than 10 days before the trial begins,
a party defending against a claim may serve upon the
adverse party an offer to allow judgment to be taken
against the defending party for the money or property or
to the effect specified in the offer, with costs then
accrued. . . . If the judgment finally obtained by the
offeree is not more favorable than the offer, the offeree
must pay the costs incurred after the making of the
offer.” FED. R. CIV. P. 68.
The “severe consequences which may result post-trial from rejection
of pre-trial offers” supports Rule 68’s purpose of “encouraging
settlement” and “discouraging protracted litigation.” Ramming, 390
F.3d at 370 n.2.
We review the district court’s interpretation of Federal Rule
of Civil Procedure 68 de novo. Basha v. Mitsubishi Motor Credit of
Am., Inc., 336 F.3d 451, 453 (5th Cir. 2003). “The district
court’s findings regarding the factual circumstances under which
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Rule 68 offers and acceptances are made, however, are reviewed
under the clear error standard.” Id.
We agree with the district court’s determination that Smith’s
two offers of judgment were ineffective. His argument that the
amount Barrow paid to GISD should be subtracted from her recovery
from Smith in analyzing the $30,000.00 offer is incorrect; Barrow
did not recover anything against GISD, and thus there is nothing to
consider in relation to GISD in determining Barrow’s total
recovery. Further, in relation to Smith’s $100,000.00 offer of
judgment, it is true that if one reduced Barrow’s attorneys’ fees
enough at the time that he made the offer, one could say that
Barrow did not recover enough to defeat Smith’s second offer of
judgment. However, such a result would require a substantial
reduction of these fees. The district court did not consider the
excessiveness of hourly rates for each attorney to be evenly spread
between the early and later years of this case. It was not clear
error or an abuse of discretion for the district court to determine
such a substantial reduction of fees at the time of the $100,000.00
offer would be inappropriate.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
judgment.
AFFIRMED.
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