919 F.2d 374 (5th Cir. 1990), 89-3775, Associated Builders & Contractors of Louisiana, Inc. v. Orleans Parish School Bd.

Docket Nº:89-3775.
Citation:919 F.2d 374
Party Name:ASSOCIATED BUILDERS & CONTRACTORS OF LOUISIANA, INC., et al., Plaintiffs-Appellees-Cross-Appellants, v. The ORLEANS PARISH SCHOOL BOARD, et al., Defendants-Appellants-Cross-Appellees.
Case Date:December 19, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 374

919 F.2d 374 (5th Cir. 1990)


al., Plaintiffs-Appellees-Cross-Appellants,




No. 89-3775.

United States Court of Appeals, Fifth Circuit

December 19, 1990

Page 375

[Copyrighted Material Omitted]

Page 376

Marc H. Morial, Lolis Elie, New Orleans, La., for defendants-appellants, cross-appellees.

Harry A. Rosenberg, M. Nan Alessandra, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for plaintiffs-appellees, cross-appellants.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before JONES, DUHE, and WIENER, Circuit Judges.

DUHE, Circuit Judge.

The Orleans Parish School Board contends that the district court erred in awarding attorney's fees to Associated Builders under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. Sec. 1988 (1982). Alternatively, the school board argues that the court erred in failing to further reduce the fees as excessive. Associated Builders asserts that the court incorrectly excluded certain expenses in calculating the proper award of attorney's fees under the statute. We affirm.

In September 1988 Associated Builders sued the Orleans Parish School Board seeking declaratory and injunctive relief against the school board's construction program, which established set-asides for minorities and women in awards of construction contracts. Associated Builders alleged that the program violated the equal protection clause of the fourteenth amendment because it provided these groups with preferential treatment based on race and gender.

In January 1989, after obtaining an extension of the normal filing deadlines and after losing on a motion to dismiss, the

Page 377

school board answered. The board denied that its set-aside program was constitutionally impermissible.

A few days after the school board filed its answer, the Supreme Court decided City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). In this seminal decision, the Court invalidated Richmond's set-aside program for minorities and women. It also articulated its general disdain for race- and gender-based preferences.

In March 1989 Associated Builders deposed the compliance officer for the school board's set-aside program. One week later, the board announced a ninety-day moratorium in awarding construction contracts. In May 1989 Associated Builders moved for summary judgment on the ground that the school board's preferential construction program was unconstitutional. Arguing that it needed additional time for discovery, the board obtained a continuance of the summary judgment hearing until May 31, 1989.

On May 15, 1989, the school board convened a special meeting to repeal its set-aside program. The board explained in the resolution:

[T]he Superintendent ... has reviewed the existing Minority/Women Set-Aside Program ... in light of the United States Supreme Court decision [sic] in the Croson and Michigan Road Builders cases, and ... it is in the best interest of the Orleans Parish School Board to repeal the existing program ... in light of pending litigation and to consider alternatives to this program which are consistent with existing State and Federal law.

(emphasis added).

One day after the meeting, the school board moved to dismiss the pending litigation as moot. The court concluded that the board's repeal of its set-aside program eliminated the need to address Associated Builders' motion for summary judgment and dismissed the case as moot.

Six days after the entry of judgment, Associated Builders filed its motion for attorney's fees as a prevailing party under section 1988 of 42 U.S.C. At the hearing, the court considered the evidence adduced by both parties and studied the chronology of events. The judge concluded that Associated Builders was a prevailing party within the context of section 1988 and was entitled to attorney's fees.

In accordance with the court's order and with the local rules, Associated Builders submitted a detailed application for attorney's fees. After considering the application in light of the Johnson factors, the court granted about seventy-five percent of the fees requested. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). The court concluded that the hourly rate was reasonable but excluded some specifically identified hours as duplicative or unnecessary.

Prevailing-Party Status Under Section 1988

Only a "prevailing party" in a civil rights action is eligible for an award of attorney's fees under section 1988. 1 Federal courts have firmly established, however, that a civil rights plaintiff may "prevail" in a case that is settled or otherwise becomes moot before the court renders a judgment on the merits. See, e.g., Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, 791-92, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866, 877 (1989) (remarking that "at a minimum, to be considered a prevailing party within the meaning of Sec. 1988 the plaintiff must be able to point to a resolution of the dispute" that changes the legal relationship between the parties); Smith v. Robinson, 468 U.S. 992, 1006, 104 S.Ct. 3457, 3465, 82 L.Ed.2d 746, 761 (1984) (asserting that Congress did not intend that a court would lose its broad authority to award attorney's fees merely because the case was settled or otherwise resolved); Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653, 661 (1980)

Page 378

(explaining that "[n]othing in the language of Sec. 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated"); Savidge v. Fincannon, 836 F.2d 898, 905 (5th Cir.1988) (noting that a plaintiff may prevail "and thus be presumptively entitled to fees" in a case that becomes moot before judgment on the merits).

We have held that in the absence of a judgment, a party may be entitled to fees as a prevailing party "if its ends are accomplished as a result of the litigation." Williams v. Leatherbury, 672 F.2d 549, 550 (5th Cir.1982). Thus, a plaintiff must establish two elements: (1) that the goal of the law suit was achieved, and (2) that the suit itself caused the defendant to remedy the discrimination. Savidge, 836 F.2d at 904-05.

A plaintiff who successfully shows both these elements has made a prima facie case that it is a prevailing party entitled to attorney's fees. The burden of proof then shifts to the defendant, who can challenge the entitlement only by showing that its conduct was a "wholly gratuitous response to a lawsuit that lacked colorable merit." Hennigan v. Ouachita Parish School Bd., 749 F.2d 1148, 1153 (5th Cir.1985).

Associated Builders clearly and undisputably established the first element of its burden of proof. The goal of the law suit--to invalidate the school board's set-aside program--was plainly accomplished. The parties vigorously contest, however, the second element--the requirement of causation. Associated Builders argues that this lawsuit prompted the school board to end its unconstitutional behavior. The school board insists that the Supreme Court's decision in Croson motivated its action.

The district court found that the lawsuit was a substantial factor in the school board's decision to repeal its set-aside program. The court correctly considered the chronology of events and effectively explained its reasoning. See Posada v. Lamb County, Texas, 716 F.2d 1066, 1072 (5th Cir.1983).

As we have previously observed, the chronology of events is an important consideration because "defendants, on the whole, are usually rather reluctant to concede that the litigation prompted them to mend their ways." Posada, 716 F.2d at 1072 (citing Ramos v. Koebig, 638 F.2d 838, 845 (5th Cir.1981)). In this case, however, the school board's own resolution provided a convincing admission that the litigation played a role in prompting the repeal of the program: "[I]t is in the best interest of the Orleans Parish School Board to repeal the existing program ... in light of pending litigation...."

In deciding whether the litigation was a significant catalyst in prompting the board's action, the district court conducted an "intensely factual" inquiry. Posada, 716 F.2d at 1072. We cannot set aside its conclusion unless the evidence leaves us with the firm conviction that the court has made a mistake. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 565, 105 S.Ct. 1504, 1507, 84 L.Ed.2d 518, 522-23 (1985) (citing United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 68 S.Ct. 525, 541-42, 92 L.Ed. 746, 765 (1948)). In light of the court's careful analysis of the chronology of events and the board's admission that the lawsuit influenced its conduct, the conclusion is not clearly erroneous.

The school board failed to argue that its conduct was " 'a wholly gratuitous response to an action that was itself frivolous or groundless.' " Savidge, 836 F.2d at 904 (quoting Williams, 672 F.2d at 551). It therefore could not have met the burden of proof required to overcome a plaintiff's prima facie case. See Hennigan, 749 F.2d at 1153.

Need for Evidentiary Hearing on Fees

The school board argues that the district court should have conducted a formal...

To continue reading