United States Court of Appeals,

Fifth Circuit.

No. 96-60197

Summary Calendar.

John J. RILEY, American Family Radio, a division of American Family Association, Inc., and

USA Radio Network, Inc., Plaintiffs-Appellants,

v.

CITY OF JACKSON, MISSISSIPPI, Jimmy L. Wilson, Chief of Police, and Gwen Harmon,

Public Information Officer, Defendants-Appellees.

Nov. 19, 1996.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JONES, DeMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Following set t lement of the Appellants civil rights cause of action brought against the

Appellees under 42 U.S.C. § 1983, the di stri ct court, pursuant to 42 U.S.C. § 1988, awarded

Appellants $2,829.87 in attorneys' fees on a fee application requesting over $86,000. The Appellants

appealed the district court's award. Finding that the district court abused its discretion, we reverse

and remand, instructing the lower court in redetermining its award of attorneys' fees to consider the

lodestar factors enunciated by this Court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714

(5th Cir.1974).

FACTUAL BACKGROUND

This civil rights action a rises from the Operation Rescue activities staged in Jackson,

Mississippi between July 9 and July 18, 1993. In preparation for the event, the City of Jackson Police

Department ("Police Department") developed sec urit y measures including certain guidelines and

policies directed at persons working for the news media. The po licy required media personnel to

cooperate with the police and to refrain from impeding access to a private driveway leading to the

clinic. The Police Department also conducted briefings on the guidelines. To accommodate media

personnel, the police issued to med ia persons badges and identifiable armbands so that they could1 In their prayer, the Appellants sought declaratory relief asking the district court to hold that

Harmon's actions were unconstitutional, that an injunction should be issued precluding the City of

Jackson from revoking press credentials without notice and an opportunity to be heard, and that

the Appellants were entitled to compensatory damages, punitive damages, costs, and attorney

fees. move in and out of restricted areas. According to the Jackson Police Department, Appellant John

J. Riley ("Riley") was given a media badge and armband and parti cipat ed in t he briefings. Riley

denied he was informed of the policy. According to the Police Department, Riley engaged in conduct

which impeded police security by jumping the police barricades and badgering clinic personnel.

Because of Riley's actions, Gwen Harmon, the Public Information Officer for t he City of Jackson,

confiscated Riley's badge and armband. Riley, through his attorneys, attempted to regain his press

credentials from Chief of Police Jimmy Wilson, but to no avail.

On October 6, 1993, the Appellants filed this action against the City of Jackson, Chief Wilson,

and Gwen Harmon, alleging that their First Amendment free speech and press rights and Fourteenth

Amendment procedural due process rights had been violated. 1 After the district court denied

Appellees' dispositive motions, the parties preliminarily began to discuss the possibility of settlement.

Eventually, the parties agreed to settle the merits of the case by entering into a Stipulated Judgment

in favor of Appellants, stating that they have judgment against the Appellees, that Riley be awarded

nominal damages, and that Appellants were "prevailing parties" under 42 U.S.C. § 1988. Further,

the Judgment provided that the media policies or guidelines for the Operation Rescue event were

violative of the First and Fourteenth Amendments, both on their face and as applied to Appellants,

and that the City of Jackson would be enjoined from enforcing the above referenced media policies

and guidelines.

Thereafter, the Appellants filed a motion for attorneys' fees under 42 U.S.C. § 1988 seeking

$86,377.00 in fees and expenses. The Appellees o bjected to the amount requested. In its

"Memorandum Opinion and Order" granting an award of fee s and expenses, the district court

concluded that Appellants fell short of their goal to establish that the Appellees were under a duty to

provide Riley a due process hearing before confiscating his credentials. The district court's rationale

was based on the fact th at Appellant s only received nominal damages and no other damages or2 In addition, the district court determined that several instances of duplication of time existed,

that travel time existed but did not determine how much was compensable, and that the $9,500

requested for preparation of the fee application lacked credibility. Finally, the district court

denied Appellants their request for $2,057 in costs and awarded them only $329.76. injunctive relief which would benefit them at the time the Stipulated Judgment was entered, and that

it was doubtful they established any meaningful precedent. Therefore, according to the district court,

Appellants achieved only limited success in this case. Based on this finding, the district court held

that the Appellants' victory was not so great to merit an award of over $84,000 in attorneys' fees, and

awarded Appellants $2,500.00 in fees. 2 The district court based its ruling on the Supreme Court's

decision in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), concluding that

the amount and nature of the damages awarded did not require it to recite the 12 factors bearing on

reasonableness or to mult iply the number of hours reasonably expended by a reasonable hourly rate.

DISCUSSION

On ap peal, this Court reviews the district court's award of attorneys' fees authorized by

statute for abuse of discretion, and the supporting factual findings are reviewed for clear error.

Cooper v. Pentecost, 77 F.3d 829, 831 (5th Cir.1996), quoting, Watkins v. Fordice, 7 F.3d 453 (5th

Cir.1993). We review the conclusions of law underlying a denial of attorney's fees d e novo. Texas

Food Indus. Ass'n v. United States Dep't of Agric., 81 F.3d 578, 580 (5th Cir.1996).

The district court's reliance on Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d

494 (1992), in determining the fees to be awarded under § 1988 in this case is misplaced.

Furthermore, we do not believe that Farrar counsels against an award of fees in this case. In F arrar,

a civil rights action brought under 42 U.S.C. § 1983, the plaint iff sought $17 millio n in damages. The

jury found that his civil rights had been violated, and on appeal this Court awarded him $1 in nominal

damages but denied his award of attorneys' fees. In affirming the denial of the award of attorneys'

fees under § 1988, the Supreme Court determined that the nominal award the plaint iff received was

a mere "technical victory" which the Court ruled merited no award of fees since he failed to prove

an essential element of his claim for monetary relief. However, F arrar is illustrative of cases where

the plaint iff sought only money damages and was essentially unsuccessful since he did not achieve in3 See e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 H ARV .L.R EV . 757, 819

n. 218 (1994). any way the ultimate goal of the litigation. 3 We do not have such a case before us today. In the case

sub judice, the Appellants achieved more than the type of "technical victory" won by the plaint iff in

Farrar. The Appellants here requested first and foremost injunctive relief and secondarily monetary

damages and were, for the most part, successful in obtaining the relief they sought. The Appellants

obtained, in addition to the nominal damages, injunctive relief by way of a change in the Appellees'

conduct that redressed the Appellants' grievanc es, thus altering the legal relationship between the

parties. Even if Appellants received only nominal relief, as noted by Justice O'Connor's concurrence,

"nominal relief does not necessarily a nominal victory make." F arrar, 506 U.S. at 121, 113 S.Ct. at

578. Thus, in many instances, a nominal recovery may very well not derogate from the importance

of the victory. Accordingly, we conclude that in this case F arrar is not controlling. Therefore, with

this in mind, we now turn to the analysis the district court must follow in this circuit in making its fee

award determination.

This Circuit uses the "lodestar met ho d" t o calculate attorneys' fees. Thus, in assessing

attorneys' fees, this Court has stated that the district court must examin e the factors set out in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). C obb v. Miller, 818 F.2d

1227, 1232 (5th Cir.1987). The fee applicant bears the burden of proving that the number of hours

and the hourly rate for which compensation is requested is reasonable. H ensley v. Eckerhart, 461

U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). The determination of whether the

applicant's reported hours are repetitive and duplicative is a finding of fact by the district court and

will not be disturbed unless clearly erroneous. C ooper v. Pentecost, 77 F.3d 829 (5th Cir.1996). The

"district court's Johnson analysis, however, need not be metic ulo usly detailed to survive appellate

review", but it must articulate and clearly apply the Johnson criteria. L ouisiana Power & Light Co.

v. Kellstrom, 50 F.3d 319, 331 (5th Cir.), cert. denied,

--- U.S.

----, 116 S.Ct. 173, 133 L.Ed.2d 113

(1995). If the J

ohnson factors are not evaluated and explained by the district court with a reasonable

degree of specificity in making its fee award determination, the case will be remanded, if necessary,for an explanation to facilitate appellate review. D avis v. City of Abbeville, 633 F.2d 1161, 1163 (5th

Cir.1981). Once the lodestar is computed by multiplying the reasonable number of hours by a

reasonable hourly rate, the district court may adjust the lodestar upward or downward depending on

its analysis of the twelve factors espoused in Johnson. Louisiana Pow er & Light Co., 50 F.3d at 324;

United States Leather, Inc. v. H & W Partnership, 60 F.3d 222, 229 (5th Cir.1995) (district court

has the sound discretion to reduce the amount of an attorneys' fee award, however, this discretion

is limit ed by Johnson ).

A review of the district court's decision awarding the Appellants a token amount of attorneys'

fees discloses that the court bypassed considering each of the factors enunciated in Johnson. Nor did

the district court make any attempt to determine a reasonable number of hours or a reasonable hourly

fee for each of the Appellants' attorney s involved in this case. Consequently, we find the district court

erred in avoiding this analysis. Instead, the district co urt criticized the injunctive relief Appellants

obtained as legally insignificant and not setting meaningful precedent, thereby setting the stage for

the low attorneys' fees award. We agree, however, with the district court's findings that some of the

attorneys' fees were repetitive and duplicative; in particular, the "intraoffice conferences" noted by

the district court demonstrates duplication of attorneys' time charges. In addition, we agree that the

$9,500.00 requested to prepa re t he fee application is excessive, but at the same time, it is

compensable. S ee Cruz v. Hauck, 762 F.2d 1230, 1233-35 (5th Cir.1985). Further, the distri ct

court's fee award does not disclose whether it included an amount for travel time incurred by the

Appellants. Accordingly, we remand to the district court to consider Johnson and to evaluate and

explain each factor in determining an appropriate award of attorneys' fees in this case.

Finally, we consider the district court's limit ed award of costs to Appellants. This court will

not disturb the assessment of costs by the district court unless there has been a showing of an abuse

of discretion. S alzstein v. Bekins Van Lines Inc., 993 F.2d 1187 (5th Cir.1993). The district court

denied Appellants reimbursement for their expenses associated with court reporting services, witness

fees, and service of process on the grounds that Appellants failed to submit a costs bill to the Clerk

of the Court as required by Uniform Local Rule 15(a). Given the deferential st andard and theAppellants' failure to point to any evidence, we do not find the district court abused its discretion.

CONCLUSION

Based on the for ego ing discussion, we REVERSE and REMAND this case to the district

court, instructing the lower court in redetermining its award of attorneys' fees to consider the lodestar

factors enunciated by this Court in Johnson.

REVERSED and REMANDED.