UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-30607
Summary Calendar
THE TIMES-PICAYUNE PUBLISHING CORPORATION,
Plaintiff-Appellant,
VERSUS
CITY OF NEW ORLEANS; THE NEW ORLEANS HUMAN RELATIONS
COMMISSION; BILL BOWERS, in his official capacity as
Executive Director of the Human Relations Commission,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Louisiana
(95-CV-518 N)
November 17, 1995
Before THORNBERRY, GARWOOD, and DeMOSS, Circuit Judges.
PER CURIAM:*
The Times-Picayune Publishing Corporation (the "Times-Picayune") appeals the
district court's denial of attorneys' fees after its 42 U.S.C. § 1983 action was dismissed.
We affirm.
Background
This suit arose from a charge of discrimination by two New Orleans women who had
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
attempted to have an announcement of their commitment ceremony published in the
Times-Picayune. On February 6, 1995, after the newspaper declined to publish the
announcement, the women filed a complaint with the New Orleans Human Relations
Commission (the "Commission"). That same day the Commission received notice of the
complaint and was given five days to respond. After a series of communications between
the parties (in which the Commission allowed more time for the response), the Times-
Picayune filed its § 1983 suit against the Commission, alleging that any investigation of
the allegations in the February 6, 1995, complaint would violate the paper's First and
Fourteenth Amendment rights.
On February 16, 1995, the district court granted the Times-Picayune's request for
a temporary restraining order and scheduled a hearing on its request for a permanent
injunction. However, on February 21, 1995, the complainants withdrew the charge of
discrimination, thereby mooting the lawsuit, and on March 1, 1995, the district court sua
sponte dismissed it. The court also dismissed the Times-Picayune's request for $15,000
in attorneys' fees and $900 in costs under 42 U.S.C. § 1988. The district court found the
Times-Picayune was not a prevailing party as required by § 1988. The court further found
that even if the Times-Picayune had been a prevailing party, the circumstances of the case
would make it unjust for attorneys' fees to be paid by the defendants.
Discussion
The district court's denial of attorneys' fees is reviewed for an abuse of discretion.
See Longden v. Sunderman, 979 F.2d 1095, 1100 (5th Cir. 1992). Only "prevailing
parties" may recover under § 1988(b). Farrar v. Hobby, 113 S.Ct. 566, 572 (1992). "[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." Id. at 573
While the dismissal of the suit does not necessarily bar a party's claim under §
1988, in order for the Times-Picayune to be entitled to attorneys' fees the suit must be a
2
substantial factor or a significant catalyst in resolving the dispute. Watkins v. Fordice, 7
F.3d 453, 456 (5th Cir. 1995). To make out a prima facie case of prevailing-party status
under these circumstances, the Times-Picayune must show: 1) the goals of the lawsuit
were achieved, and; 2) the suit caused the defendants to remedy the discrimination. Ibid.
Causation is not shown by the mere fact that the event occurred after suit was filed, but
is a question of fact which is reviewed for clear error. Pembroke v. Wood County, Tex.,
981 F.2d 225, 230 (5th Cir.), cert. denied, 113 S.Ct. 2965 (1993).
The Times-Picayune argues that while certain issues pertinent to the prevailing
party status are primarily factual in nature and thus reviewed under the clearly erroneous
standard, the ultimate determination whether it is a prevailing party under § 1988 is a
question of law subject to de novo review. The Times-Picayune concedes the issue of
whether the filing of the lawsuit was a substantial factor in accomplishing its ends is
subject to the clearly erroneous standard.
The district court found that although the Times-Picayune had received the relief
it sought by commencing the suit, and thus had satisfied the first element of the prevailing-
party status, it was not a prevailing party under § 1988 because the suit was not a
substantial factor in bringing about the requested relief. The court made factual findings
in reaching this determination. Most significantly, the court found that rather than
consulting with the Commission about whether it had reached a conclusion regarding the
legality of its investigation, or when it might reach such a decision, the Times-Picayune
filed the instant suit. The court made the following relevant findings:
From the beginning, the Commission's counsel indicated that the
Commission would most probably drop the complaint if the paper asserted
its first amendment rights. Rather than asserting its rights and giving the
Commission time to do what it promised it would "most probably" do, the
paper somehow incurred over $15,000 in attorneys' fees and court costs to
force the Commission to dismiss the Charge at once. It could have reached
the same result -- albeit perhaps a week or two later -- simply by informing
the Commission that the paper was relying on its first amendment rights in
refusing to respond to the Commission's request for information.
The district court's determination that the Times-Picayune's suit was not a
substantial factor in the Commission's decision not to proceed with the charge is supported
3
by the record and is not clearly erroneous. Pembroke, 981 F.2d at 230; See Williams v.
Fab-Con, Inc., 990 F.2d 228, 230 (5th Cir. 1993). The district court did not abuse its
discretion in denying the request for attorneys' fees.1
AFFIRMED.
1
Because we hold the district court did not err in
determining that the Times-Picayune was not a prevailing party, we
need not consider whether, as the district court suggested, that,
even if the Times-Picayune were a prevailing party for purposes of
§ 1988, special circumstances would have rendered it unjust for the
court to compel the defendants to pay for attorneys' fees. See
Kirchberg v. Feenstra, 708 F.2d 991, 995 (5th Cir. 1983).
4