United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 30, 2007
Charles R. Fulbruge III
Clerk
No. 05-41689
THE HOUSTON CHRONICLE PUBLISHING CO.;
THE GALVESTON COUNTY DAILY NEWS,
Plaintiffs-Appellees - Cross-Appellants,
versus
CITY OF LEAGUE CITY, TEXAS; ET AL,
Defendants,
CITY OF LEAGUE CITY, TEXAS,
Defendant-Appellant - Cross-Appellee.
Appeals from the United States District Court
for the Southern District of Texas
(3:05-CV-448)
Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit
Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The City of League City, Texas, challenges being permanently
enjoined from enforcing, as unconstitutional, its Ordinance 2004-45
(the Ordinance), regulating street vendors and door-to-door
solicitors. The City contends: the two plaintiff newspapers, The
Houston Chronicle and The Galveston County Daily News, lack
standing; the injunction should be vacated for mootness because,
post-entry of the injunction, the City repealed the
constitutionally impermissible provisions; and the not-repealed
provision, § 78-39, which regulates only street vendors’ conduct at
traffic-signal-controlled intersections, is a constitutional
restriction. The newspapers respond: they have standing; vacatur
due to mootness is improper because such mootness resulted from the
City’s voluntary actions; § 78-39 is unconstitutional, as held by
the district court; and it erred in not awarding them attorney’s
fees.
Both newspapers have standing. Further, the injunction will
not be vacated. Because the remaining provision, § 78-39, has
never been applied to the newspapers, however, and, because its
plain language is non-discriminatory and content-neutral, we
reverse the district court’s holding it unconstitutional, both
facially and as applied. Pursuant to the newspapers’ cross-appeal,
we reverse the district court’s refusal to award attorney’s fees to
them, because they remain prevailing parties on their claim,
pursuant to 42 U.S.C. § 1983. VACATED IN PART; REVERSED IN PART;
REMANDED.
I.
The instant dispute post-dates a related Texas state-court
action, in which the Houston Chronicle sued City officials for
prosecuting its street vendors for violating Texas Transportation
Code § 552.007(a) (prohibiting street solicitations, except by
charitable organizations). That state-court action ended in March
2004 with a consent judgment permanently enjoining the City from
2
prosecuting Houston Chronicle vendors under this state law.
Houston Chronicle Pub. Co. v. Sistrunk, No. 03-CV-1587 (122nd
Judicial District Court, Galveston County, Texas 3 March 2004).
The Ordinance is similar to the above Texas law. (As noted,
most of it was voluntarily repealed after entry of the injunction
in this action, leaving only § 78-39, quoted below.) The Ordinance
required, inter alia, any “solicitor, peddler, canvasser, or
itinerant vendor”, prior to engaging in any “business and related
activities”, to: register with the City; submit to a criminal
background check; pay a $30 fee; and post a $1,000 bond. LEAGUE
CITY, TEX., ORDINANCES art. II, §§ 78-32 and 78-33 (2004). The
Ordinance exempted “[m]inors conducting fundraising activities who
represent a youth organization, including, but not limited to Boy
Scouts, Girl Scouts, Little League groups, and school groups”. Id.
at § 78-34(c).
In January 2005, approximately nine months after the 2004
state-court consent judgment, the City amended the Ordinance to add
§ 78-39. That section is primarily at issue in this appeal and
states, in part:
(a) No person who is within a public roadway
may solicit or sell or distribute any material
to the occupant of any motor vehicle stopped
on a public roadway in obedience to a traffic
control signal light. It is specifically
provided, however, that a person, other than a
person twelve years of age or younger, may
solicit or sell or distribute material to the
occupant of a motor vehicle on a public
roadway so long as he or she remains on the
3
surrounding sidewalks and unpaved shoulders,
and not in or on the roadway itself, including
the medians and islands.
Id. at § 78-39 (emphasis added).
A year after the 2004 state-court consent judgment, and
several months after § 78-39 was added, the City, using a related
Ordinance provision (§ 78-38), issued citations to two Houston
Chronicle vendors selling newspapers at the intersection of State
Highway FM 518 and Interstate 45, for “soliciting without a
permit”. Id. at § 78-38(12) (making it “unlawful for any peddler,
solicitor, canvasser or itinerant vendor” to conduct business “on
any public roadway, public roadway median, public sidewalk ... or
other public property within the city without written authorization
from the city”). As a result, the Houston Chronicle and the Daily
News filed this action in August 2005, pursuant to 42 U.S.C. §
1983, claiming the Ordinance violated the First and Fourteenth
Amendments.
That October, the district court permanently enjoined
enforcement of the Ordinance, holding it unconstitutional, both
facially and as applied to prohibit newspaper sales on public
streets. Regarding the recently enacted and above-quoted § 78-39,
the court found: “the City allows charitable organizations [e.g.,
firefighters] to solicit donations for their causes at the
intersection [in issue] while prosecuting the newspapers’ vendors
for engaging in constitutionally protected activity because the
4
newspapers’ activities are commercial, rather than charitable”.
Houston Chronicle Pub. Co. v. City of League City, Tex., No. G-05-
448 (S.D. Tex. 14 Oct. 2005) (mem.) [hereinafter USDC Opn.]. The
district court did not find, however, that the City ever
prosecuted, or threatened to prosecute, the newspapers under § 78-
39. But implicit in its findings is the suggestion that the City
will do so. Id. at *7. In any event, the district court held:
“Section 78-39 ... cannot be justified as a valid time, place and
manner restriction because the City de facto discriminates in
enforcing it based on the content of the message being conveyed”.
Id. at *3. The City filed its notice of appeal that November.
The following January (2006), however, it voluntarily repealed the
provisions of the Ordinance pertaining to registration, bond
posting, and door-to-door solicitation; it did not repeal § 78-39.
II.
First at issue is whether the newspapers have standing.
Because they do, next at issue is whether the injunction should be
vacated due to mootness. It is not vacated because the mootness is
due to the City’s voluntarily repealing portions of the Ordinance.
The remaining issues are whether the district court erred: (1) in
holding § 78-39 unconstitutional (due to the City’s repealing the
other Ordinance provisions, only the constitutionality vel non of
§ 78-39 remains); and (2) in denying attorney’s fees to the
newspapers.
5
A.
The City maintains both newspapers lack standing to challenge
the repealed provisions of the Ordinance, claiming the controversy
as to those provisions is moot. (Mootness as it relates to vacatur
is addressed in part II.B.) Concerning the remaining provision, §
78-39, the City conceded at oral argument here that the Houston
Chronicle has standing to challenge that section. (Of course, we,
not the parties, determine such jurisdictional questions.) The
City continues, however, to contend the Daily News lacks standing
to challenge § 78-39 because it failed to present evidence it
engages in street-vendor sales prohibited by that provision.
Standing issues are reviewed de novo. E.g., Rivera v.
Wyeth-Ayerst Labs., 283 F.3d 315, 319 (5th Cir. 2002). No
authority need be cited for our clear-error standard of review for
findings of fact. The district court held both newspapers have
standing because each demonstrated long-established practices of
street-vendor sales in the City. USDC Opn. at *1.
To establish standing, a plaintiff must show: (1) it has
suffered, or imminently will suffer, a concrete and particularized
injury-in-fact; (2) the injury is fairly traceable to the
defendant’s conduct; and (3) a favorable judgment is likely to
redress the injury. E.g., Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). As the parties agree, both newspapers satisfy
the causation and redressability requirements. Therefore, at issue
6
is: whether the newspapers can demonstrate injury for the repealed
provisions and for § 78-39.
Toward this end, the newspapers rely on a 28 April 2005 letter
from the City’s attorney, which indicated the City would prosecute
them under § 78-39. The letter acknowledged possible
constitutional problems with subjecting the newspapers to the
Ordinance’s later-repealed permitting requirements, pursuant to,
e.g., § 78-38, but stated:
It is our position that in all other respects
the ordinance represents a reasonable exercise
of the City’s police power .... As the
[City’s Police] Chief made clear in his
comments [at a meeting that April], [Houston
Chronicle] salespeople are, in certain
instances, setting up shop in the center of a
painted, unimproved median on a busy farm-to-
market road intersecting Interstate 45 South.
Enforcement of the ordinance will minimize the
possibility of serious bodily injury or death
for these individuals. In the face of these
known circumstances, I cannot imagine that
either the [Houston] Chronicle or Daily News
would wish to be recognized for having
advocated a repeal of these safety measures at
the risk of their employees’ safety and well-
being.
1.
Concerning the Houston Chronicle, the City issued two
citations to its vendors at the above-referenced intersection,
pursuant to the Ordinance’s now-repealed permitting requirements in
§ 78-38 and related sections. Although the above-quoted
correspondence intimates the City would not further prosecute both
newspapers under § 78-38, it clearly indicated it will do so under
7
§ 78-39. The Houston Chronicle has demonstrated sufficient injury
to establish standing for the repealed provisions and, as discussed
below, for § 78-39.
2.
Regarding the Daily News, and contrary to the City’s
contentions, it has demonstrated it engages in sales in the City
that would subject its vendors to prosecution under the Ordinance
in general and § 78-39 in particular. In addition to the evidence
the district court found sufficient (which finding the City does
not show was clearly erroneous), this court granted the Daily News’
9 February 2006 motion to supplement the record on appeal, adding
evidence that, following entry of the injunction, the Daily News
began selling newspapers at the above-referenced intersection.
(That motion was filed after the City’s November 2005 notice of
appeal and its January 2006 repeal of most of the Ordinance.
Allowing the supplementation was appropriate in the light of this
post-notice-of-appeal conduct by the City. Of course, after the
notice was filed, the evidence could not be filed in district court
without our remanding for that purpose.)
Chilling a plaintiff’s speech is a constitutional harm
adequate to satisfy the injury-in-fact requirement. Meese v.
Keene, 481 U.S. 465, 473 (1987) (holding foreign-films exhibitor
showed chill sufficient to meet “objective injury” requirement by
demonstrating reputational injuries that would result from labeling
8
films “political propaganda” under the Foreign Agents Registration
Act); but see Laird v. Tatum, 408 U.S. 1, 13-14 (1972) (holding
unspecified “[a]llegations of a subjective ‘chill’ are not an
adequate substitute for a claim of specific present objective harm
or a threat of specific future harm”).
Although, unlike the Houston Chronicle, the Daily News has not
been issued a citation under the Ordinance, it has shown a chilling
of its First Amendment activities under the repealed Ordinance
provisions. Both newspapers have shown such effect for § 78-39,
and both have shown imminent future prosecution if the City is not
enjoined. Therefore, each newspaper has demonstrated specific
injury beyond mere subjective chill. Meese, 481 U.S. at 473;
Lujan, 504 U.S. at 560. Thus, like the Houston Chronicle, the
Daily News has satisfied the injury-in-fact requirement.
This result is consistent with broader Supreme Court and Fifth
Circuit precedent. See, e.g., Steffel v. Thompson, 415 U.S. 452,
459 (1974) (“it is not necessary that [a party] first expose
himself to actual arrest or prosecution to be entitled to challenge
a statute that he claims deters the exercise of his constitutional
rights”); Int'l Soc’y for Krishna Consciousness of Atlanta v.
Eaves, 601 F.2d 809, 818 (5th Cir. 1979) (a justiciable controversy
exists when “the plaintiff is seriously interested in disobeying,
and the defendant seriously intent on enforcing, the challenged
measure”).
9
B.
The City asserts: its repealing parts of the Ordinance
renders the newspapers’ earlier challenge to those parts moot; and,
as a result, the injunction should be vacated. The newspapers
concede their challenge to the repealed provisions is obviously
moot; but, they claim the City should not be permitted to evade the
injunction by selectively repealing provisions. We reject the
City’s vacatur-due-to-mootness contention.
It goes without saying that disputes concerning repealed
legislation are generally moot. See, e.g., AT&T Commc’ns of the
Sw., Inc. v. City of Austin, 235 F.3d 241, 244 (5th Cir. 2000)
(citing United States v. Munsingwear, Inc., 340 U.S. 36, 39
(1950)). Nevertheless, “[v]acatur of the lower court’s judgment is
warranted only where mootness has occurred through happenstance,
rather than through voluntary action of the losing party”. Murphy
v. Fort Worth Indep. Sch. Dist., 334 F.3d 470, 471 (5th Cir. 2003)
(per curiam) (citing Arizonans for Official English v. Arizona, 520
U.S. 43, 71 (1997)(emphasis added)); see also Staley v. Harris
County, Texas, No. 04-20667, 2007 WL 1191147, at *4 (5th Cir. 24
April 2007) (en banc). As the Supreme Court held in U.S. Bancorp
Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994):
if mootness results from the losing party’s voluntary actions, that
party has “forfeited his legal remedy by the ordinary process of
appeal ..., thereby surrendering his claim to the equitable remedy
10
of vacatur”. To allow a party “to employ the secondary remedy of
vacatur as a refined form of collateral attack on the judgment
would – quite apart from any considerations of fairness to the
parties – disturb the orderly operation of the federal judicial
system”. Id. at 27; see also, AT&T Commc’ns of the Sw., Inc., 235
F.3d at 244 (“vacatur does not lie ... when the party seeking
relief from the district court’s judgment ... ‘caused the mootness
by voluntary action’” (quoting U.S. Bancorp, 513 U.S. at 24));
Sierra Club v. Glickman, 156 F.3d 606, 620 (5th Cir. 1998)
(refusing to vacate where the issue was rendered moot by the losing
party’s voluntary compliance with the judgment).
In response to this authority, the City points to two cases;
each is readily distinguishable. In Arizonans for Official
English, the Supreme Court vacated a judgment as moot because the
state employee, who was challenging the Arizona constitutional
amendment requiring state employees to speak only English, quit her
employment while her appeal was pending. 520 U.S. at 74-75.
Because the employee was not the loser in the appealed-from
judgment, the U.S. Bancorp rule was not involved.
Similarly, in AT&T Communications of the Southwest, Inc., our
court vacated a judgment due to mootness when the ordinance at
issue was superseded by a Texas state law. That law was passed
while the appeal was pending and prohibited the ordinance. 235
F.3d at 243-44. Contrary to the City’s contentions, this case also
11
does not concern the U.S. Bancorp rule because, again, the mootness
was not caused by the losing party’s actions; rather, the Texas
legislature created it by enacting the new law. Id.
Our decision here finds further support in our court’s recent
en banc decision in Staley, in which we refused to vacate an
injunction against a religious display outside a Texas courthouse
after the defendant-county voluntarily removed it. 2007 WL
1191147, at *8. As emphasized in Staley, vacatur is an
“extraordinary” and equitable remedy, “to be determined on a case-
by-case basis, governed by facts and not inflexible rules”. Id. at
*4 (citing U.S. Bancorp., 513 U.S. at 25-26). The burden is on
“the party seeking relief from the status quo”; that party must
demonstrate “equitable entitlement to the extraordinary writ of
vacatur”. U.S. Bancorp., 513 U.S. at 26.
In holding the defendant-county in Staley had not made such a
showing, our en banc court distinguished several cases granting
vacatur even though the controversy was mooted by the losing
party’s voluntary action. See, e.g., Russman v. Bd. of Educ., 260
F.3d 114 (2d Cir. 2001) (granting vacatur and differentiating
between voluntary conduct purposefully taken to moot a controversy,
and voluntary conduct “entirely unrelated to the lawsuit”, such as
the plaintiff-student graduating from school); Khodra Envtl., Inc.
v. Beckman, 237 F. 3d 186, 195 (3d Cir. 2001) (granting vacatur
when no evidence suggested the mootness-causing legislation
12
responded to the unfavorable judgment); Nat’l Black Police Ass’n v.
Dist. of Columbia, 108 F.3d 346, 350-52 (D.C. Cir. 1999) (vacating
judgment as moot when challenged campaign-contribution limits were
removed before the district court enjoined them). As noted in
Staley, equitable factors distinguish these cases from the instant
case, including: whether plaintiffs obtained full relief in
district court before the defendants mooted the case; and the
extent to which non-parties to the litigation were impacted by the
district court judgment. 2007 WL 1191147, at *6.
Consistent with Staley, and unlike Russman, Khodra
Environmental, and National Black Police Association, the equitable
factors in the instant case weigh against vacating the district
court’s injunction. Contrary to Russman, the mootness-causing
action did not result from typical progression of events, such as
a student graduating from school. Distinct from Khodra
Environmental, the City has not shown its repealing the Ordinance
provisions was not in response to the district court judgment. And
unlike National Black Police Association, the newspapers obtained
full relief in district court before League City repealed most of
the Ordinance. Moreover, the Ordinance has been applied
exclusively against the newspapers, rather than non-parties to this
litigation. Therefore, we refuse to vacate the injunction.
C.
13
As discussed, § 78-39, the only provision not voluntarily
repealed, was held unconstitutional by the district court. The
City contends § 78-39 is a constitutionally permissible, content-
neutral time, place, and manner restriction, narrowly tailored to
achieve a compelling governmental interest. See Konigsberg v.
State Bar of Cal., 366 U.S. 36, 50 (1961) (general regulatory
ordinances “not intended to control the content of speech but
incidentally limiting its unfettered exercise, have not been
regarded as the type of law the First or Fourteenth Amendments
forbade”).
Despite its ultimately holding § 78-39 unconstitutional, the
district court found § 78-39 “has no content-based discriminatory
intent”. USDC Opn. at *5. Consistent with the above-quoted letter
from the City attorney, the City relies on this finding to maintain
its content-neutral purpose is one of public safety: to prohibit
the dangerous activity of solicitors’ entering busy traffic
intersections. Toward this end, the City demonstrated at trial
that newspaper street-vendors in nearby cities had been seriously
injured at intersections similar to FM 518/I-45. According to the
City, § 78-39 was deliberately drafted to restrict solicitations
only at intersections controlled by traffic-signal lights in order
to narrowly tailor the restriction, while leaving open adequate
alternative channels for solicitation. See, e.g., Int’l Soc’y for
Krishna Consciousness of New Orleans, Inc. v. City of Baton Rouge,
14
876 F.2d 494, 495-96 (5th Cir. 1989) (upholding an ordinance
stating, “[n]o person shall be upon or go upon any street or
roadway ... for the purpose of soliciting employment, business, or
charitable contributions of any kind from the occupant of any
vehicle”).
Despite its above-quoted finding that § 78-39 “has no content-
based discriminatory intent”, the district court held the section
“cannot be justified as a valid time, place and manner restriction
because the City de facto discriminates in enforcing it based on
the content of the message being conveyed”. USDC Opn. at *6. It
further held § 78-39 was not applied in a content-neutral manner
because the City “allows charitable organizations to solicit
donations for their causes at the intersection of FM 518 and
Interstate 45 while prosecuting the newspapers’ vendors for
engaging in constitutionally protected activity”. Id. And it held
§ 78-39 was neither narrowly tailored nor designed to serve a
compelling government interest:
According to [the] City’s own witnesses
[referring, inter alia, to its Police Chief’s
testimony], [§ 78-39] is not narrowly drawn to
promote the City’s stated goal of promoting
safety, and the City plainly has no compelling
interest in allowing street solicitations for
... charitable organizations while prohibiting
newspaper sales.
Id. at *7 (emphasis added). (Of course, this holding was prior to
the voluntary repeal of parts of the Ordinance, including those
permitting solicitations for charitable organizations.)
15
Injunctive relief is reviewed for an abuse of discretion.
Peaches Entm’t Corp. v. Entm’t Repertoire Assocs., Inc., 62 F.3d
690, 693 (5th Cir. 1995) (permanent injunction reviewed for abuse
of discretion) (citations omitted). In that regard, a district
court abuses its discretion when it: “(1) relies on clearly
erroneous factual findings when deciding to grant or deny the
permanent injunction[,] (2) relies on erroneous conclusions of law
when deciding to grant or deny the permanent injunction, or (3)
misapplies the factual or legal conclusions when fashioning its
injunctive relief”. Id.
The district court correctly stated the applicable law:
streets are traditional public forums, United States v. Grace, 461
U.S. 171, 177 (1983); the sale of newspapers is a First-Amendment-
protected activity, see, e.g., New York Times Co. v. Sullivan, 376
U.S. 254, 266 (1964); therefore, in order to prohibit such activity
in a quintessential public forum, a content-based regulation must
be “necessary to serve a compelling state interest and ... narrowly
drawn to achieve that end”; and, when the regulation is content-
neutral, it must also be “narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of
communication”, Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 45 (1983). USDC Opn. at *4-5. The district court
correctly applied these legal principles to the Ordinance as a
16
whole, as well as to the City’s application of it to the
newspapers. Id. at *6-7.
With regard to § 78-39, however, the district court’s holding
it unconstitutional can not be upheld, now that the section stands
alone, stripped of any discriminatory context provided by the
repealed provisions. For example, repealed § 78-34 exempted from
the Ordinance’s proscriptions “youth organization[s], including,
but not limited to Boy Scouts, Girl Scouts, Little League groups
and school groups”. ORDINANCE § 78-34.
Viewed in isolation, § 78-39 is not facially unconstitutional.
See United States v. Salerno, 481 U.S. 739, 745 (1987) (“[a] facial
challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the Act
would be valid”). We reject the newspapers’ assertions that, by
only prohibiting solicitations at intersections controlled by
traffic-signal lights, § 78-39 is underinclusive – too narrowly
tailored – to effectively serve any real public-safety interest.
On its face, prohibiting street solicitations only at such
intersections is a reasonable means to narrowly tailor § 78-39’s
reach. Such intersections (those requiring traffic-signal lights)
are generally the most heavily trafficked. See USDC Opn. at *7
(stating approximately 37,000 vehicles per day cross the I-45/FM-
518 intersection). Therefore, they are the most dangerous.
17
Accordingly, § 78-39’s proscription serves a compelling interest at
the heart of government’s function: public safety. See Int’l
Soc’y for Krishna Consciousness of New Orleans, Inc., 876 F.2d at
496-97.
Further, the district court erred in concluding that “the City
de facto discriminates in enforcing [§ 78-39] based on the content
of the message being conveyed”. USDC Opn. at *6. As noted,
although it has threatened to do so (creating standing for the
newspapers, as discussed supra), the City has never applied § 78-39
to either newspaper. The two citations were pursuant to § 78-38,
not § 78-39. Neither newspaper contends the City has ever enforced
§ 78-39 against them, and the district court made no such factual
finding. See Nat’l Endowment for the Arts v. Finley, 524 U.S. 569,
586-87 (1998) (refusing to engage in a hypothetical as-applied
analysis based on facts not before the Court).
Lacking actual application, the newspapers contended at oral
argument here that a Texas law, Texas Transportation Code §
552.0071, obligates the City to discriminate against them in
applying § 78-39. That law requires local governments to allow
municipal employees, such as firefighters, “to stand in a roadway
to solicit a charitable contribution”, so long as such solicitors
comport with other local requirements, such as posting a bond or
obtaining a permit. TEX. TRANSP. CODE ANN. § 552.0071 (Vernon 2005).
The newspapers argued: this state law imports discrimination into
18
§ 78-39 against non-municipal, non-charitable organizations;
because the City would violate § 552.0071 by applying § 78-39
against charitable-municipal-employee street-solicitors, a
mandatory exception to § 78-39 is created by operation of law; and
this contention is sufficient to uphold the district court’s
finding § 78-39 “de facto discriminatory”.
The newspapers, however, did not expressly make this imported-
into-§-78-39 contention in district court; nor did they include it
in their submitted “Plaintiffs Findings of Fact and Conclusions of
Law”, which, except for not awarding attorney’s fees, the district
court adopted nearly verbatim and without altering the title; nor
did they assert it in their brief to this court. Instead, at oral
argument, the newspapers relied on a vague reference in their
appellate brief concerning the Police Chief’s testimony, in which
he stated the City intended to discriminate between charitable and
non-charitable solicitations through a combination of § 78-39 and
“a state law”.
Generally, we do not consider issues presented for the first
time at oral argument. Even assuming the issue was raised in the
newspapers’ brief, an unspecified reference to “state law” is
insufficient to present it adequately. See, e.g., FED. R. APP. P.
28(f) (“If the court’s determination of the issues presented
requires the study of statutes, rules, regulations, etc., the
relevant parts must be set out in the brief or in an addendum at
19
the end”). In any event, the Police Chief’s testimony regarding
the City’s future enforcement intentions is an inadequate factual
basis to support the district court’s “de facto discrimination”
finding or any as-applied analysis. See Finley, 524 U.S. at 586-
87.
An as-applied unconstitutionality issue may arise in the
future, of course, if the City enforces § 78-39 against the
newspapers. Based on the record on appeal, however, we can not
uphold the district court’s conclusion that § 78-39 has been
applied unconstitutionally. See id. Therefore, we reverse the
district court’s enjoining § 78-39 as unconstitutional.
D.
The denial of attorney’s fees is reviewed for an abuse of
discretion. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)
(attorneys’ fees reviewed for abuse of discretion, citing 42 U.S.C.
§ 1988). The newspapers assert: as prevailing parties in a § 1983
action, they are entitled to such fees; and the district court
abused its discretion in refusing to award them, especially without
explanation. The City counters that the denial was within the
court’s discretion under 42 U.S.C. § 1988(b); it provides: “In 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”. (Emphasis added.)
20
The Supreme Court has interpreted § 1988(b) to mean “a
prevailing plaintiff should ordinarily recover an attorney’s fee
unless special circumstances would render such an award unjust”.
Hensley, 461 U.S. at 429 (internal quotations and citations
omitted) (emphasis added). Our court has further held: “Because
Congress believed that the incentive of attorney’s fees was
critical to the enforcement of the civil rights laws, section 1988
requires an extremely strong showing of special circumstances to
justify a denial of fees”. Kirchberg v. Feenstra, 708 F.2d 991,
998 (5th Cir. 1983) (internal citation omitted) (emphasis added).
In refusing to award fees, the district court did not provide
any explanation, or reference any “special circumstances”,
justifying its denial, even though the newspapers prevailed on all
of their claims. See, e.g., Hensley, 461 U.S. at 433 (“plaintiffs
may be considered ‘prevailing parties’ for attorney's fees purposes
if they succeed on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing suit”
(internal quotations omitted)).
Although we reverse the district court’s holding § 78-39
unconstitutional, the newspapers remain “prevailing parties”, and,
therefore, are entitled to attorney’s fees. As recently discussed
in Staley: “[A] determination of mootness neither precludes nor is
precluded by an award of attorneys’ fees. The attorneys’fees
question turns instead on a wholly independent consideration:
21
whether plaintiff is a ‘prevailing party’”. 2007 WL 1191147, at *8
(quoting Doe v. Marshall, 622 F.2d 118, 120 (5th Cir. 1980)). “To
qualify as a prevailing party ‘[a]ll that is required is that the
plaintiff obtain the primary relief sought.’” Id. (quoting
Marshall, 622 F.2d at 120).
Among other equitable factors, because the newspapers obtained
the primary relief they sought in district court, they remain
prevailing parties and are entitled to attorney’s fees.
Accordingly, we reverse the denial of attorney’s fees and remand
this action to district court for their imposition.
III.
For the foregoing reasons, the newspapers prevail except as to
§ 78-39. Accordingly, the injunction against § 78-39 is VACATED;
the denial of attorney’s fees is REVERSED; and this action is
REMANDED to the district court for imposition of those fees.
VACATED IN PART; REVERSED IN PART; REMANDED
22
Houston Chronicle Publishing Co. v. City of League City
Court: Court of Appeals for the Fifth Circuit
Date filed: 2007-05-30
Citations: 488 F.3d 613
Copy CitationsCombined Opinion