Decision Date26 October 2010
Docket NumberNo. 08-15152.,08-15152.
Citation625 F.3d 692
PartiesLaquarius GRAY, a minor, by and through her mother and next friend, Toniko L. Alexander, Plaintiff-Appellee, v. Antonio BOSTIC, individually and in his official capacity as Deputy Sheriff for Tuscaloosa County, AL, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit


Travis Russell Wisdom, Auburn, AL, for Bostic.

H. Arthur Edge, III, Arthur Edge, III, P.C., Birmingham, AL, for Gray.

Appeal from the United States District Court for the Northern District of Alabama (No. 03-02989-CV-UWC-V); U.W. Clemon, Judge.



The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), the Suggestion of Rehearing En Banc is DENIED.

CARNES, Circuit Judge, joined by BLACK, Circuit Judge, concurring in the denial of rehearing en banc:

The opinion dissenting from the denial of rehearing en banc addresses an issue that is not before this Court. The dissent addresses whether attorney's fees ought to be awarded in this nominal damages case. Our decision, by contrast, addresses the entirely different issues of whether we ought to vacate the district court's award of attorney's fees because the court made errors of law in deciding whether to award fees, and whether we ought to remand the case so that the district court can exercise its discretion free from the effect of those errors of law instead of exercising it ourselves.

No one disputes that the decision whether to award attorney's fees in a case involving an award of only nominal damages is committed to the sound discretion of the district court, subject to the parameters laid out in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), and related decisions. We said exactly that in our opinion for this Court.

Gray ex rel. Alexander v. Bostic, 613 F.3d 1035, 1039 (11th Cir.2010) ( Gray IV). But as the Supreme Court instructed earlier this year, although attorney's fees matters are “committed to the sound discretion of a trial judge ... the judge's discretion is not unlimited.” Perdue v. Kenny A. ex rel. Winn, --- U.S. ----, 130 S.Ct. 1662, 1676, 176 L.Ed.2d 494 (2010). And, just a month later the Court reminded us that: Statutes vesting judges with such broad discretion are well known in the law, particularly in the attorney's fees context. Equally well known, however, is the fact that a judge's discretion is not unlimited.” Hardt v. Reliance Standard Life Ins. Co., ---U.S. ----, 130 S.Ct. 2149, 2158, 176 L.Ed.2d 998 (2010) (citation and quotation marks omitted). We also said that in our opinion. Gray IV, 613 F.3d at 1039.

As equally well established as those principles are two more. The first one is that when a district court commits an error of law in deciding how to exercise its discretion, that court has, by definition, abused its discretion. United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.2003) ( ‘A district court by definition abuses its discretion when it makes an error of law.’ (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047 (1996))); accord Young v. New Process Steel, LP, 419 F.3d 1201, 1203 (11th Cir.2005) ([A] ruling based on an error of law is an abuse of discretion.”); United States v. Hall, 349 F.3d 1320, 1323 (11th Cir.2003) ( [I]f the refusal [to give a requested jury instruction] was based on an error of law, then it is by definition an abuse of discretion.”).

The second additional principle is that if a district court has abused its discretion, the court of appeals should not decide how to exercise the district court's discretion; instead, it should remand the matter so that the district court can exercise its discretion free from the error of law. See Mobley v. Head, 306 F.3d 1096, 1097 (11th Cir.2002) ([I]f the dissent were right that the district court misread Felker, then under Collins we would be required to remand; we would not be free to affirm by substituting for the district court's discretion our conjecture that it would have reached the same result had it been guided by a proper view of the law.”); Collins v. Seaboard Coastline R.R. Co., 681 F.2d 1333, 1335 (11th Cir.1982) (“A discretionary decision that falls within permitted bounds, but is based on false premises, raises the question on review as to whether the trial court would have come to the same conclusion using proper premises. That it could have does not satisfy the inquiry as to whether it would have reached the same result. The affirmance of a discretionary decision that is based on an improper view of the facts or the law merely reflects the appellate court's exercise of discretion that rightfully belongs to the trial court.”); Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1325 (11th Cir.1996) (explaining that because the abuse of discretion standard allows a range of choice for the district court, the case was being remanded to the district court to give it the first opportunity to decide the issue under the correct legal standard). 1 These principles leave as a point of disagreement between our opinion for the Court and the dissenting opinion only the issue of whether the district court in deciding whether to award attorney's fees in this nominal damages case committed an error of law. It clearly did. For the convenience of the reader, we set out our explanation of how the district court's citation-count approach amounted to legal error:

The district court, in deciding that an award of fees and expenses was warranted notwithstanding the nominal amount of damages, relied on the fact that the one published opinion to have come out of this litigation, our decision in Gray II [ Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1300 (11th Cir.2006)]; see also id. at 1301, had been “cited in more than fifty other cases during the two years between its issuance on August 7, 2006 and the district court's order awarding fees on July 29, 2008. In measuring “the significance of the legal issue on which the plaintiff prevailed” or “the public purpose served,” Farrar, 506 U.S. at 121-22, 113 S.Ct. at 578-79 (O'Connor, J., concurring), by totaling up the number of times that our Gray II decision had been cited, the district court misapplied the law and overstated the impact of that decision.

During the two-year period considered by the district court, our decision in Gray II had been cited, by our count, in sixty-four decisions, which is certainly “more than fifty other cases.” But only two of those sixty four decisions cited Gray II for the point of substantive law that this plaintiff prevailed on. See Moretta v. Abbott, 280 Fed.Appx. 823, 825 (11th Cir.2008) (unpublished) (citing Gray II in support of proposition that the unlawfulness of tasering a six-year-old who was passively standing in the corner of elementary school principal's office “was readily apparent to an official in the shoes of these officers”); T.S. v. State, 863 N.E.2d 362, 372 (Ind.Ct.App.2007) (citing Gray II and two other decisions for the proposition that “a security or school officer who compels or restrains a student's movement seizes the student for Fourth Amendment purposes”). The substantive point of law underlying the plaintiff's victory in Gray II is the fairly narrow one that a law enforcement officer, acting as a school resource officer, who “handcuff[s] a compliant nine-year-old child for purely punitive purposes” has unreasonably seized the child in violation of the Fourth Amendment. See Gray II, 458 F.3d at 1307. Narrow or not, the nature of that point of law is not the problem with the district court's citation-head-counting method for determining its significance. The problem is that the court's count was grossly overinclusive and greatly exaggerated the effect of that Gray II holding.

Sixty-two of the sixty-four citations to Gray II do not evidence “the significance of the legal issue on which the plaintiff prevailed” or “the public purpose served,” but instead cite the decision for some point of law unrelated to its Fourth Amendment holding. For example, some of those other decisions cite Gray II for general principles of law that were already well established, such as those dealing with our interlocutory jurisdiction over appeals from motions for summary judgment based on qualified immunity. See, e.g., Bates v. Harvey, 518 F.3d 1233, 1239 (11th Cir.2008). The plaintiff in this case cannot claim credit for that principle of law and probably would not want to do so even if she could. Some of the other of those sixty-two decisions actually cite Gray II for holdings on issues and claims that the plaintiff lost. For example, some of them cite the part of the decision applying the principle that a defendant cannot be held liable under § 1983 based on a theory of respondeat superior or on the basis of vicarious liability, Gray II, 458 F.3d at 1308 (“Supervisory officials cannot be held liable under § 1983 for the unconstitutional actions of their subordinates based on respondeat superior liability.”). See Turner v. Marshall. No. 2:05-CV-983, 2008 WL 2559391, at *4-5 (M.D.Ala. June 24, 2008).

It was an error of law for the district court to conclude that simply because Gray II had been cited more than fifty times during a two-year period, the substantive issue on which the plaintiff prevailed must be significant and the public purpose served by her victory must be substantial. That error of law requires us to vacate the court's order awarding the plaintiff fees and expenses and to remand for additional proceedings free from the error. If the district court on remand chooses to do a headcount of citations to our Gray II decision, it should survey all of the citations up to...

To continue reading

Request your trial
20 cases
  • Gray v. Bostic
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 3, 2013
    ...that the new judge would use similar reasoning. This court also denied the suggestion of rehearing en banc. Gray ex rel. Alexander v. Bostic, 625 F.3d 692 (11th Cir.2010).7. Background of this Appeal (Gray V) This court remanded this matter, leaving the district court to decide “whether the......
  • Diaz v. First Marblehead Corp., Case No: 6:14-cv-1338-Orl-31TBS
    • United States
    • U.S. District Court — Middle District of Florida
    • November 3, 2014 the Eleventh Circuit are required to utilize the "lodestar approach" to calculate a reasonable attorney's fee. See Gray v. Bostic, 625 F.3d 692 (11th Cir. 2010); see also City of Burlington v. Dague, 505 U.S. 557, 562 (1992). The lodestar figure is reached by "multiply[ing] the number of......
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 22, 2010
  • Barnes v. Zaccari, 13-13800
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • January 12, 2015
    ...approach,' which is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Gray v. Bostic, 625 F.3d 692, 714 (11th Cir. 2010). "A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers ......
  • Request a trial to view additional results
1 books & journal articles
  • How Class Action Fees Work in the Eleventh Circuit
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 73-3, March 2022
    • Invalid date
    ...court's discretion not unlimited).171. Hensley, 461 U.S. at 437.172. 28 U.S.C. § 1291 (1982). See Conte, supra note 100, at § 2:29. 173. 625 F.3d 692 (11th Cir. 2010).174. Id. at 693 (Carnes, J., concurring) (concurring in the denial of rehearing en banc).175. In re Home Depot, Inc., 931 F.......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT