IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-51241

CLEOPATRA DELEON; NICOLE DIMETMAN; VICTOR HOLMES; MARK 

PHARISS, 

 Plaintiffs - Appellees

v.

GREG ABBOTT, in his official capacity as Governor of the State of Texas; 

KEN PAXTON, in his official capacity as Texas Attorney General; JOHN 

HELLERSTEDT, in his official capacity as Commissioner of the Texas 

Department of State Health Services, 

 Defendants - Appellants

Appeals from the United States District Court 

for the Western District of Texas

USDC No. 5:13-CV-982

Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, and Mark Phariss 

were awarded $585,470.30 in attorneys’ fees and $20,202.90 in costs arising 

from their successful challenge to Texas’s constitutional and statutory 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 18, 2017

Lyle W. Cayce

Clerk

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provisions limiting marriage to opposite-sex couples. On appeal, Texas argues 

that the fees and costs awarded are excessive and are composed of noncompensable amounts. We find no abuse of discretion and AFFIRM. 

I. 

The plaintiffs were successful in obtaining a judgment invalidating 

Article I, § 32 of the Texas Constitution and Texas Family Code §§ 2.001(b) and 

6.204(b), which limited marriage in Texas to opposite-sex couples. Following 

the Supreme Court’s decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), 

recognizing a constitutional right to same sex marriage, this court affirmed the 

district court’s preliminary injunction and directed the judgment be entered in 

plaintiffs’ favor. 

After judgment was entered, plaintiffs sought to recover their attorney’s 

fees under 42 U.S.C. § 1988 and costs under Federal Rule of Civil Procedure 

54.

II.

We review awards of attorney’s fees “for abuse of discretion, reviewing 

factual findings for clear error and legal conclusions de novo.” Davis v. Abbott, 

781 F.3d 207, 213 (5th Cir.), cert. denied, 136 S. Ct. 534 (2015). The 

reasonableness of attorney rates and hours expended are questions of fact 

reviewed for clear error. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 

(5th Cir. 1995). A district court abuses its discretion if its award is “based on 

an erroneous view of the law or a clearly erroneous assessment of the 

evidence.” Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir. 1999) 

(internal quotation marks omitted). 

As we have said before, “[w]e cannot overemphasize the concept that a 

district court has broad discretion in determining the amount of a fee award.” 

Associated Builders & Contractors of La., Inc. v. Orleans Par. Sch. Bd., 919 

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F.2d 374, 379 (5th Cir. 1990). Our deferential review is “‘appropriate in view 

of the district court’s superior understanding of the litigation and the 

desirability of avoiding frequent appellate review of what essentially are 

factual matters.’” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)); 

see also Cantu Servs., Inc. v. Frazier, et al., No. 16-31035, 2017 WL 1089508, 

at *2 (5th Cir. Mar. 22, 2017) (“‘Due to the district court’s superior knowledge 

of the facts and the desire to avoid appellate review of factual matters, the 

district court has broad discretion in setting the appropriate award of 

attorney[’s] fees.’”) (quoting Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993); 

Hopwood v. Texas, 236 F.3d 256, 277 (5th Cir. 2000) (“Appellate courts have 

only a limited opportunity to appreciate the complexity of trying any given case 

and the level of professional skill needed to prosecute it.”). However, this 

deferential review is appropriate only if the district court “‘provide[s] a concise 

but clear explanation for its reasons for the fee award.’” Associated Builders, 

919 F.2d at 379 (quoting Hensley, 461 U.S. at 437) (alteration in original). 

Under Federal Rule of Civil Procedure 54, a prevailing party may recover 

its costs. See Fed. R. Civ. P. 54(d)(1); 28 U.S.C. § 1920 (delineating recoverable 

costs). Moreover, under 42 U.S.C. § 1988, a prevailing party may also recover 

“[a]ll reasonable out-of-pocket expenses, including charges for photocopying, 

paralegal assistance, travel, and telephone . . . because they are part of the 

costs normally charged to a fee-paying client.” Associated Builders, 919 F.2d at 

380. The award and calculation of costs and expenses are committed to the 

district court’s discretion, though expenses that “are extravagant or 

unnecessary” must be disallowed. Curtis v. Bill Hanna Ford, Inc., 822 F.2d 

549, 553 (5th Cir. 1987).

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III. 

The district court’s order reflects that it carefully reviewed the plaintiffs’ 

claim for attorney’s fees and costs under the proper legal standards. It also 

carefully considered the state’s many objections to the plaintiffs’ claimed fees 

and costs. After considering those objections, the district court accepted a 

substantial 35 percent reduction in the total hours expended to account for 

non-compensable time and determined that the remaining hours were both 

reasonable and reasonably expended. See Kellstrom, 50 F.3d at 324. We 

recently reiterated that, “[i]n determining reasonable attorney’s fees, the 

district court is not required ‘to achieve auditing perfection,’ as ‘[t]he essential 

goal in shifting fees (to either party) is to do rough justice.’” Cantu, 2017 WL 

1089508, at *4 (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)) (second alteration 

in original). Instead, “[d]istrict courts may ‘take into account their overall 

sense of a suit, and may use estimates in calculating and allocating an 

attorney’s time.’” Id. (quoting Fox, 563 U.S. at 838). As the Supreme Court has 

warned, “trial courts need not, and indeed should not, become green-eyeshade 

accountants.” Fox, 563 U.S. at 838.

Here, we find that the district court acted well within its broad discretion 

in making the appropriate reductions and reasonableness determinations. See 

id. (“We can hardly think of a sphere of judicial decisionmaking in which 

appellate micromanagement has less to recommend it.”). In sum, after a 

careful review of the record, we are satisfied that the district court acted well 

within its discretion in its award of fees and costs.

AFFIRMED.

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JENNIFER WALKER ELROD, Circuit Judge, concurring in part and 

dissenting in part:

I agree that the bulk of the fee award should be affirmed. However, the 

district court awarded fees for tasks that are not, in my view, compensable. 

The majority opinion erroneously affirms the award for these non-compensable 

tasks, and in so doing it ignores our precedent and creates at least one, and 

arguably more, circuit splits. Because I would remand for the district court to 

exclude fees based on non-compensable tasks, I respectfully dissent.

I.

Section 1988 authorizes district courts to award a “prevailing party” its 

“reasonable attorney’s fee[s].” 42 U.S.C. § 1988(b). Plaintiffs sought recovery 

for 1706.8 hours of attorney time. Though they voluntarily excluded roughly 

35 percent of the time expended on the litigation, a portion of their fee request 

was composed of time expended in relation to: (1) a failed motion to intervene; 

(2) Plaintiffs’ counsels’ interactions with the media; and (3) Plaintiffs’ counsels’ 

interactions with amici. Despite Texas’s objections, the district court awarded 

fees for all requested time. Simply put, Section 1988 does not authorize 

recovery for any of these categories of tasks and they should have been 

excluded. 

A.

First, the district court awarded compensation for time expended in 

relation to a failed third-party motion to intervene. The majority opinion 

affirms this award, but violates our rule of orderliness by failing to follow, or 

even address, our precedent prohibiting recovery for intervention-related time 

and simultaneously creates a circuit split on this issue.

In Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000), we considered the 

prevailing plaintiffs’ argument that it was entitled to recover fees for time 

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expended opposing a motion to intervene. Id. at 280. In affirming the district 

court’s exclusion of these fees, we noted that Texas (the defendant in that case) 

had “remained neutral on the intervention issue,” and so it was not adverse to 

the plaintiff on this issue. Id. Given this, we concluded that “the Plaintiffs did 

not ‘prevail’ on [the intervention] issue vis-à-vis Texas.” Id. (“Plaintiffs elected 

to oppose intervention and they were successful—but not against Texas: They 

succeeded against the putative intervenors in a case instituted by Plaintiffs, 

not by Texas.”).1 Id. Of course, whether a plaintiff “prevails” is not simply a 

factor relevant to the district court’s discretion; it is a statutory prerequisite to 

obtaining a fee award. See 42 U.S.C. § 1988(b). And so, having concluded that 

the plaintiffs were not “prevailing parties” on this issue, we affirmed the 

district court’s exclusion. 

Hopwood prohibits awarding intervention-related fees in this case. As in 

Hopwood, Texas took no position on the motion to intervene, and so Plaintiffs 

did not “prevail on this issue vis-à-vis Texas.” Hopwood, 236 F.3d at 280. Thus, 

the same basis for affirming the district court’s exclusion of such fees in 

Hopwood—absence of prevailing-party status—prohibits an award of 

intervention-related fees in this case. As was true in Hopwood, “[n]either logic 

nor equity supports taxing Texas under these circumstances.” Id. This is all 

 

1 In Hopwood, we recognized that two other circuits have extended the Supreme 

Court’s decision in Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 761 

(1989)—holding that recovery of fees from an intervenor are not permitted unless the 

intervention is frivolous, unreasonable, or without foundation—to prohibit “the award of fees 

to prevailing plaintiffs from the pockets of losing defendants when the fees are based on 

interventions by third-parties.” Hopwood, 236 F.3d at 280; see Rum Creek Coal Sales, Inc. v. 

Caperton, 31 F.3d 169, 176–78 (4th Cir. 1994) (“Under the Supreme Court decision in Zipes, 

we are required to hold that the intervention-related fees and expenses in question here are 

not recoverable under 42 U.S.C. § 1988 by a prevailing plaintiff against a losing defendant.”); 

Bigby v. City of Chicago, 927 F.3d 1426, 1428–29 (7th Cir. 1991). Hopwood did not reach this 

issue. See 236 F.3d at 280.

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the more true here given that Plaintiffs have not argued that interventionrelated fees are recoverable. Despite this, the majority opinion affirms the 

award with nary a mention of Hopwood. Cf. United States v. Fields, 777 F.3d 

799, 807 (5th Cir. 2015) (“Under our rule of orderliness, one panel may not 

overrule the decision of a prior panel absent an intervening change in the 

law . . . .”). 

Not only does the majority opinion depart from our precedent, it creates 

a split with at least one other circuit. In Rum Creek Coal Sales, Inc. v. 

Caperton, 31 F.3d 169 (4th Cir. 1994), the Fourth Circuit considered a district 

court’s exclusion of attorneys’ fees “incurred in opposing [a third-party’s] 

intervention.”2 Id. at 176. Affirming this exclusion, the Fourth Circuit held 

that “intervention-related fees and expenses . . . are not recoverable . . . by a 

prevailing plaintiff against a losing defendant.” Id. at 178. The majority 

opinion is at odds with Rum Creek. Yet despite our normal hesitation to 

contradict one of our sister circuits, the majority opinion does so without 

explanation. See Home Port Rentals, Inc. v. Int’l Yachting Grp., Inc., 252 F.3d 

399, 407 (5th Cir. 2001) (“Moreover, we are reluctant to create a circuit split 

by holding differently . . . .”). 

Because our precedent prohibits recovery for these fees, I would reverse 

the district court’s award for intervention-related time.

B.

Second, the district court awarded fees for time expended interacting 

with the media, and the majority opinion affirms. Because time spent 

interacting with the media is not compensable under Section 1988, I would 

hold that the district court abused its discretion.

 

2 Rum Creek based its holding on its interpretation of Zipes. See 31 F.3d at 176–78.

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It is well-established that § 1988 allows a prevailing party to recover 

their reasonable attorneys’ fees, composed of a reasonable rate and “the 

number of hours reasonably expended on the litigation.” Hensley v. Eckerhart, 

461 U.S. 424, 433 (1983) (emphasis added). Though we have never expressly 

disallowed fees for time spent interacting with the media, we have noted before 

that we are “chary about granting requests for media fees,” Hopwood, 236 F.3d 

at 280, and have affirmed exclusions of media-related time precisely because 

time interacting with the media is not, in the mine-run of cases, “expended on 

the litigation.” Hensley, 461 U.S. at 433; accord Watkins v. Fordice, 7 F.3d 453, 

458 (5th Cir. 1993) (affirming district court exclusion of “time spent holding 

press conferences”); Hopwood, 236 F.3d at 280. 

Our chariness in awarding fees for media-related activities is not unique. 

Two of our sister circuits have disallowed fees for such tasks. In Davis v. San 

Francisco, 976 F.2d 1536 (9th Cir. 1992), reh’g denied, vacated in part, and 

remanded, 984 F.2d 345 (9th Cir. 1993), the Ninth Circuit held that time 

expended on “press conferences and public relations” was compensable only 

when it “is directly and intimately related to the successful representation of a 

client.” Id. at 1545; see id. (media-related time compensable only when 

prevailing party demonstrated that it “contribute[d], directly and 

substantially, to the attainment of [its] litigation goal”). Similarly, in Rum 

Creek, the Fourth Circuit (though declining to adopt the Ninth Circuit’s rule) 

concluded that “[t]he legitimate goals of litigation are almost always attained 

in the courtroom, not in the media.” 31 F.3d at 176. And so the court disallowed 

the media-related fees at issue there because they were not “aimed . . . at 

achieving litigation goals.” Id.

Under any standard, the awarding of media-related fees in this case is 

improper: Plaintiffs have offered no explanation for how the media-related 

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tasks included in the fee award were “directly and intimately related to [their]

successful representation,” Davis, 976 F.2d 1545, or were “aimed at achieving 

[their] litigation goals.” Rum Creek, 31 F.3d at 176 (alteration omitted). I would 

therefore hold that because Plaintiffs have failed to demonstrate how the 

media-related time included in the fee award was “expended on the litigation” 

Hensley, 461 U.S. at 433, they should not recover fees for that time. Accord 

Watkins, 7 F.3d at 458 (affirming exclusion of media-related time where the 

district court’s opinion stated that time spent on press conferences is not spent 

on the litigation and where “[prevailing party] did not present any evidence 

regarding the efficacy of the press conferences”).

The Plaintiffs have not argued that media-related time is compensable; 

in fact, they concede that it is not. Instead, they defend the district court’s 

award of these fees because: (1) the media-related activities are a small portion

of the tasks included in the relevant entries; and (2) Plaintiffs excluded 35 

percent of time expended from their fee request.

Neither argument justifies affirmance. First, it may well be true that the 

relevant time entries “contain much more detailed information on legal work 

performed by the attorney(s) during that time”; but the fact that most of the 

time is compensable is not a license to award non-compensable time as well, 

even if a small amount. Second, it is irrelevant that Plaintiffs chose to exclude 

numerous entries containing non-compensable time from their fee request. The 

district court’s task is not only to ensure that “the total hours claimed are 

reasonable,” but also that the “particular hours claimed were reasonably 

expended.” La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 325 (5th Cir. 1995) 

(emphasis added).3 Non-compensable tasks do not somehow become 

 

3 To the extent the majority opinion states that the district court reduced the fee 

request by 35 percent, that assertion is inaccurate. As noted, it was Plaintiffs that chose to 

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compensable simply because a plaintiff voluntarily elects to exclude 

compensable, along with non-compensable, hours from its fee request.4

C.

Finally, the district court included in its fee award time spent in 

connection with supporting amici. Contrary to the majority opinion, I would 

hold that a prevailing party may not recover fees for time expended soliciting 

or coordinating with supporting amici, or reviewing amicus briefs before they 

are filed. 

In Glassroth v. Moore, 347 F.3d 916 (11th Cir. 2003), the Eleventh 

Circuit considered whether a party could recover under Section 1988 for work 

done “in relation to a number of amicus briefs filed in support of plaintiffs’ 

position,” including time enlisting organizations to appear as amici, suggesting 

 

withhold 35 percent of the fees incurred from their request. Despite this, the fact remains 

that intervention-related, media-related, and amici-related time were included in the fee 

request that was ultimately submitted to the district court. Neither the Plaintiffs nor the 

district court deducted these improperly submitted items from the total fees awarded.

4 The ability to assess the reasonableness of a fee request is greatly undermined by 

the practice of billing multiple discrete tasks under a single time designation—so-called 

“block-billing.” This practice was heavily utilized by Plaintiffs’ counsel in this case. We have 

held that a party seeking an attorneys’ fee award must produce documentation that is 

“sufficient for the court to verify that the applicant has met its burden of establishing an 

entitlement to a specific award.” Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1044

(5th Cir. 2010); La. Power & Light Co., 50 F.3d at 325 (supporting documentation must be 

“adequate to determine reasonable hours”). At first blush, block-billing appears to be in 

tension with this standard, as district courts must not only assess whether the total amount 

of time spent is reasonable, but also “whether the particular hours claimed were reasonably 

expended.” La. Power & Light Co., 50 F.3d at 325 (emphasis added). Nevertheless, we have 

stated that “failing to provide contemporaneous billing statements does not preclude an 

award of fees per se, as long as the evidence produced is adequate to determine reasonable 

hours.” Gagnon, 607 F.3d at 1044.

The upshot of this jurisprudence is that litigants take their chances in submitting fee 

requests containing block-billed entries and will have no cause to complain if a district court 

reduces the amount requested on this basis. See, e.g., Welch v. Metro. Life Ins. Co., 480 F.3d 

942, 948 (9th Cir. 2007) (“We do not quarrel with the district court’s authority to reduce hours 

that are billed in block format.”); Lahiri v. Univ. Music & Video Dist. Corp., 606 F.3d 1216, 

1223 (9th Cir. 2010) (affirming reduction of 30 percent for block-billed entries).

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potential signatories for the briefs, working on, supervising, and reviewing the 

amicus briefs, and seeing that they were mailed on time. Id. at 918–19. The 

Eleventh Circuit reasoned that because amici are not entitled to attorneys’ fees 

as a “prevailing party,” it would not allow this result to be changed “by the 

simple expedient of having counsel for a party do some or all of the amicus 

work.” Id. Consequently, the court held that district courts “should not award 

plaintiffs any attorney’s fees or expenses for work done in connection with 

supporting amicus briefs.” Id.

I agree with the approach taken by our sister circuit. Only prevailing 

parties may recover under Section 1988, and amici are not parties. See 42 

U.S.C. § 1988(b). To allow a party to recover for soliciting and coordinating 

with amici would facilitate easy circumvention of this rule.5 See Glassroth, 347 

F.3d at 919; see also Bishop v. Smith, 112 F. Supp. 3d 1231, 1246 (N.D. Okla. 

2015) (“[P]re-filing activities must be carefully scrutinized and are not 

compensable if they constitute brainstorming potential amici, strategizing 

regarding potential amici, coordinating potential amici, soliciting potential 

amici, or drafting/editing an amicus brief.”). Accordingly, I would hold that 

prevailing parties may not recover fees for time expended soliciting or 

coordinating with supporting amici, or reviewing amicus briefs before they are 

filed. This restriction ensures the integrity of Section 1988’s limitation, while 

 

5 Plaintiffs rely on two district court opinions from other jurisdictions which allowed 

recovery under § 1988 for time spent soliciting and coordinating with amici. See EEOC v. 

Freeman, 126 F. Supp. 3d 560, 577–78 (D. Md. 2015); Bourke v. Beshear, No. 3:13-cv-750, 

2016 WL 164626, at *6 (W.D. Ky. Jan. 13, 2016) (allowing recovery for time expended “for 

the solicitation of amicus briefs”). Other district court opinions have likewise permitted such 

recovery. See Riter v. Moss & Bloomberg, Ltd., No. 96 C 2001, 2000 WL 1433867, at *5 (N.D. 

Ill. Sept. 26, 2000) (allowing recovery for working with amici under fee-shifting provision in 

15 U.S.C. § 1692k(a)(3)); Watson v. E.S. Sutton, Inc., No. 02 CV 2739, 2007 WL 2245432, at 

*4 (S.D.N.Y. Aug. 3, 2007). None of these decisions are binding or persuasive. 

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allowing for recovery in those instances where amici-related work is necessary 

to the adequate representation of a client.6 

The attorneys’ fee award in this case undoubtedly contains time that is 

non-compensable under the Eleventh Circuit’s approach. The majority opinion, 

however, offers no explanation for its affirmance of these fees, nor does it 

attempt to justify the circuit split it creates with the Eleventh Circuit.7

II.

I am no more interested in nickel and diming attorneys’ fee awards than 

is the majority opinion. We defer to the district court in this context precisely 

because it is better positioned to assess the reasonableness of a fee request and 

to avoid converting requests for attorneys’ fees into “a second major litigation.” 

Hensley, 461 U.S. at 437. For this reason, I agree that the bulk of the fee award 

should be affirmed. But deference is not a blank check: where the district court 

 

6 For example, I agree that a prevailing party should be permitted to recover fees for 

time spent reviewing and responding to opposing amicus briefs, a point the parties do not 

dispute. See Glassroth, 347 F.3d at 919; see also Sharpe Holdings, Inc. v. U.S. Dep’t of Health 

& Human Servs., No. 2:12-cv-92, 2015 WL 3773426, at *6 (E.D. Mo. June 17, 2015) (allowing 

recovery for time spent responding to opposing amicus brief); North Dakota v. Heydinger, No. 

11-cv-3232, 2016 WL 5661926, at *24 (D. Minn. Sept. 29, 2016) (“Plaintiffs are entitled to a 

reasonable amount of fees for time spent responding to those opposing amicus briefs.”). 

Unlike awarding fees for coordinating with supporting amici, awarding fees for responding 

to opposing amici does not undermine Section 1988’s limitation that only prevailing parties 

may recover their fees. The same is true as to time spent reviewing supporting amicus briefs 

after they have been filed. See Bishop, 112 F.3d at 1246. “Supporting amicus briefs often raise 

new arguments or policy considerations, and review may be necessary to prepare for oral 

argument.” Id. at 1245. So, too, a prevailing party should be permitted to recover fees for time 

spent in connection with amicus briefs required by federal rule or otherwise. For example, 

Federal Rule of Appellate Procedure 29 provides that prospective amici may file a brief only 

“by leave or court or if the brief states that all parties have consented to its filing.” Fed. R. 

App. P. 29(a)(2). 

7 Under the federal rules, an amici must indicate whether “a party’s counsel authored 

the brief in whole or in part.” Fed. R. App. P. 29(a). The vast majority, if not all, of supporting 

amici indicated in their briefs that Plaintiffs’ counsel did not author any portion of their brief. 

Nonetheless, Plaintiffs now seek recovery for time expended coordinating with supporting 

amici. 

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has awarded fees for non-compensable tasks, we should correct the error. The 

majority opinion unfortunately declines to do so, and in the process it ignores 

our binding precedent and generates at least one circuit split, and arguably 

more—all without explanation. I respectfully dissent.8

 

8 Texas also challenged the award of pro hac vice fees as “costs” under Fed. R. Civ. P. 

54 and 28 U.S.C. § 1920. We have not yet decided whether pro hac vice fees are recoverable. 

See, e.g., Obey v. Frisco Medical Ctr. LLP, No. 4:13-cv-656, 2015 WL 1951581, at *2 (E.D. Tex. 

Apr. 29, 2015). Moreover, some of our sister circuits are divided on this issue. Compare 

Kalitta Air LLC v. Central Tex. Airbore Sys. Inc., 741 F.3d 955, 957–58 (9th Cir. 2013) 

(holding that pro hac vice fees are not recoverable as costs), with Craftsman Limousine, Inc. 

v. Ford Motor Co., 579 F.3d 894, 898 (10th Cir. 2009) (holding that pro hac vice fees are 

recoverable as costs). I agree with Texas that pro hac vice fees are not recoverable as costs. 

However, because Texas did not adequately brief this issue, I agree that the award should be 

affirmed in this respect. 

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