1The appellees include, in their representative capacities and as members of the State Board of

Election Commissioners, Kirk Fordice, the Governor of Mississippi, Mike Moore, the Attorney

General of Mississippi, and Dick Molpus, the Secretary of State of Mississippi. 

 

2We held in Weiser v. White, 505 F.2d 912, 913, 918 (5th Cir.), cert. denied, 421 U.S. 993, 95

S.Ct. 1998, 44 L.Ed.2d 482 (1975), that we lacked jurisdiction over an appeal of a three-judge

court order addressing the issue of attorney's fees. We so held under the belief that the Supreme

Court had exclusive jurisdiction over the matter pursuant to 28 U.S.C. § 1253. Weiser, 505 F.2d

at 918. The Supreme Court's subsequent indication that it has no jurisdiction to decide disputes

surrounding the award of attorney's fees, Supreme Court of Virginia v. Consumers Union of

United States, Inc., 446 U.S. 719, 737 n. 16, 100 S.Ct. 1967, 1977 n. 16, 64 L.Ed.2d 641 (1980),

and the Court's refusal to review this case for lack of jurisdiction, Watkins v. Fordice, --- U.S. ----

, 113 S.Ct. 1573, 123 L.Ed.2d 142 (1993), force us to reconsider our position. Once again "time,

tide and the ceaseless flow from on high leaves [an aspect of Weiser ] as a historical marker of the

law that was." United States v. Louisiana, 543 F.2d 1125, 1127 (5th Cir.1976). We now hold

that we have jurisdiction to 28 U.S.C. § 1291 to hear appeals from three-judge courts on the issue

of attorney's fees. 

United States Court of Appeals,

Fifth Circuit.

No. 92-7764.

Hollis WATKINS, et al., Plaintiffs-Appellants, Cross-Appellees,

v.

Kirk FORDICE, Governor of the State of Mississippi, et al., Defendants-Appellees, CrossAppellants.

Nov. 24, 1993.

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

Before REAVLEY, HIGGINBOTHAM and EMILIO M. GARZA, Circuit Judges.

REAVLEY, Circuit Judge:

Black citizens of Mississippi (Appellants) complain on appeal that the three-judge district

court erred in calculating the amount of attorneys' fees it awarded them under the Voting Rights Act

of 1965, 42 U.S.C. § 1973l(e), and the CivilRights Attorneys' Fees Award Act of 1976, 42 U.S.C.A.

§ 1988 (West Supp.1993). Mississippi officials1(the State) argue on cross-appeal that Appellants

did not prevail in the underlying action and, thus, should not recover attorneys' fees. We vacate and

remand.2

I. BACKGROUND
 

3An "electable black majority district" is defined as a district containing a black voting age

population of 607, or 657 in the Mississippi Delta. 

Using 1990 census data, Mississippi in 1991 redistricted both houses of its legislature to

replace its existing 1982 apportionment scheme. The legislature sought preclearance under § 5 of

the Voting Rights Act, but on July 2, 1991, the United States Attorney General objected to the 1991

redistricting plans.

Meanwhile, on June 28, 1991, Appellants asked the three-judge district court to enjoin

upcoming elections under either the existing scheme or the newly enacted 1991 plans, claiming that

both diluted their votes. In August, the court denied Appellants' requested injunction because the

primary elections were only a month away. As interim relief, the court ordered that the upcoming

September and October primary elections proceed under the existing scheme, even though it was

malapportioned. The court denied Appellants' subsequent motion for a stay pending appeal, and the

Supreme Court affirmed. Appellants followed with a motion to enjoin the enforcement of the district

court's order, arguing that it contained new procedures that were not precleared under § 5 of the

Voting Rights Act. The court denied t he injunction, and again, Appellants were rebuffed by the

Supreme Court.

Then, during its 1992 regularsession, Mississippi'slegislature passed new redistricting plans,

which the Attorney General precleared. These plans sat isfied all of Appellants' demands; most

significantly, they created the maximum number of electable black majority districts.3 Because the

1992 scheme mooted Appellants' claims, the court ordered the parties to file necessary motions for

the final disposition of the case.

Appellantsrequested dissolutionofthe three-judge court, remand ofthe case to a single-judge

district court, and an award of attorneys' fees under 42 U.S.C. §§ 1973l(e), 1988. The court denied

Appellants' request for dissolution and awarded them $198,688.23 in attorneys' fees and expenses,

instead of the $866,938.39 requested.

On appeal, Appellants argue (1) the district court did not properly calculate the attorneys'

fees, (2) the fee award should be enhanced, (3) the court should have held an evidentiary hearing on
the issue of attorneys' fees, and (4) the court erred by not including post-judgment interest in the

award of attorneys' fees. On cross-appeal, the State contends (1) Appellants are not prevailing

parties, and (2) the court's award of attorneys' fees is excessive.

II. ANALYSIS

A. Prevailing Party

Only "prevailing parties" may recover attorneys' fees under 42 U.S.C. §§ 1973l(e), 1988.

A plaintiff prevails if the relief obtained, through judgment or settlement, materially alters the

defendants' behavior in a way directly benefitting the plaintiff. Farrar v. Hobby, --- U.S. ----, ----,

113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). To attain prevailing party status, the plaintiff must

show (1) the goals of the lawsuit were achieved, and (2) the suit caused the defendantsto remedy the

discrimination. Associated Builders &Contractors of La., Inc. v. Orleans Parish Sch. Bd., 919 F.2d

374, 378 (5th Cir.1990). The lawsuit must be a "substantial factor or a significant catalyst in

motivating the defendantsto end their unconstitutionalbehavior." Posada v. Lamb County, 716 F.2d

1066, 1072 (5th Cir.1983) (quoting Williams v. Leatherbury, 672 F.2d 549, 551 (5th Cir.1982)).

No one disputes that the 1992 redistricting scheme satisfied all Appellants' objectives. The

parties only contest whether Appellants' lawsuit caused the legislature to enact the 1992 plans. The

State contends that the Attorney General's July 1991 objection letters and Art. 13 § 254 of the

Mississippi Constitution (requiring the legislature to redistrict) motivated the plans.

The district court characterized Appellants' prevailing-party status as a "close question."

Watkins v. Fordice, 807 F.Supp. 406, 411 (S.D.Miss.1992). Mississippi's legislature began the

reapportionment process, held a series of public hearings, and passed the 1991 redistricting plans

months before Appellants filed suit. Further, the district court and the Supreme Court rebuffed

Appellants at every turn. Yet Mississippi's 1992 redistricting plans (unlike the 1991 plans) created

the maximum number of electable black majority districts, which is exactly what Appellants sought.

The district court ultimately concluded that, despite their relative ineffectiveness before the court,

Appellants were "prevailing parties" under 42 U.S.C. §§ 1973l(e), 1988. Id. ("[I]t is likely the case

that plaintiffs, and thislawsuit, played a motivating role in shaping the particular apportionment plans
 

4

In Johnson, this court listed the following factors to be considered when setting a reasonable

fee: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill

required to perform the legal service properly; (4) the preclusion of other employment by the

attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or

contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount

involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; 

(10) the "undesirability" of the case; (11) the nature and length of the professional relationship

with the client; and (12) awards in similar cases. Id. 

which the legislature adopted.").

In Voting Rights Act cases, the chronology of events is particularly instructive on the role

played by a plaintiff's lawsuit in ending the defendant's discriminatory activity. Id. In the spring of

1991, Mississippi's legislature enacted reapportionment plans, which everyone involved considered

unacceptable. Appellants filed suit, the Attorney General issued objections letters, and the district

court found the plans to be malapportioned. In an about-face, the legislature enacted a

reapportionment scheme in the spring of 1992 that created the greatest number of electable black

majority districts. The three-judge district court, intimately familiar with the facts of this case as well

as the subtle forces at play during the evolution of the final reapportionment scheme, found

Appellants' suit to be a motivating factor in the enactment of the 1992 plans. We conclude that the

district court did not clearly err in its recognition of Appellants as prevailing parties.

B. Attorneys' fee calculation

Sections 1973l(e) and 1988 accord the district court discretionto award reasonable attorneys'

fees to prevailing parties. To determine the award amount, the court must first calculate the

"lodestar" by multiplying the number of hours reasonably spent on the litigation times a reasonable

hourly billing rate. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40

(1983). The court should consider the factors announced in Johnson v. Georgia Highway Express,

Inc., 488 F.2d 714, 717-19 (5thCir.1974)4 when analyzing the reasonableness of the hours expended

and the hourly rate requested. Once determined, the lodestar may be adjusted upward or downward

if the Johnson factors, not included in the reasonable fee analysis, warrant the adjustment. Shipes v.

Trinity Indus., 987 F.2d 311, 320 (5thCir.1993). The lodestar, however, is presumptively reasonable

and should be modified only in exceptional cases. City of Burlington v. Dague, --- U.S. ----, ----, 112
S.Ct. 2638, 2641, 120 L.Ed.2d 449 (1992).

On appeal, we review the court's award of attorneys' fees for abuse of discretion and the

supporting factual findings for clear error. Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir.1990).

Due to the district court's superior knowledge of the facts and the desire to avoid appellate review

offactualmatters, the district court has broad discretion in setting the appropriate award of attorneys'

fees. Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941.

1. Hours reasonably spent on litigation

 The party seeking attorneys' fees must present adequately documented time records to the

court. Using this time as a benchmark, the court should exclude all time that is excessive, duplicative,

or inadequately documented. Hensley, 461 U.S. at 432-34, 103 S.Ct. at 1939; Von Clark, 916 F.2d

at 259. The hours surviving this vetting process are those reasonably expended on the litigation.

Here, the court considered each time entrydocumented byAppellants. From the total billable

hours, the court disallowed 274 hours spent on lobbying-related activities, 230 hours of travel time,

86.87 hours of pre-litigation time which the court considered excessive, 125.4 hours the court

characterized as duplicative or excessive, and four hours spent on press conferences. Watkins, 807

F.Supp. at 412-414. We find no reversible error in the district court's analysis.

a. Lobbying Activity

Prior to filing suit, Appellants spent significant time lobbying the Mississippi Legislature and

the Attorney General. Appellants contend they should be compensated for this time. We disagree.

Under §§ 1973l(e) and 1988, the district court mayaward attorneys'feesto a prevailing party

in "any action or proceeding." Prevailing parties may recover only that time "reasonably expended

on the litigation." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. While prevailing parties may be

compensated for time spent preparing to file suit, they may not recover for their pre-litigation

participation in the preclearance process under § 5 ofthe Voting Rights Act. Craig v. Gregg County,

988 F.2d 18, 21 (5th Cir.1993).

Similarly, time spent lobbying a state legislature before filing a lawsuit is not time "reasonably

expended on the litigation." In Webb v. Board of Ed. of Dyer County, the Supreme Court held that
the district court could, in its discretion, disallow "time spent pursuing optional administrative

remedies." 471 U.S. 234, 244, 105 S.Ct. 1923, 1929, 85 L.Ed.2d 233 (1985). Lobbying resembles

such an "optional remedy." Instead of filing suit, individuals may seek relief through the political

process. While, at times, it may be advisable to pursue political alternatives before resorting to

litigation, these activities, occurring before the initiation of a lawsuit, are not within the purview of

"litigation." See generally id. at 242-43, 105 S.Ct. at 1928. Furthermore, Appellants did not show

that "any discrete portion ofthe work product fromthe [lobbying] was work that was both useful and

of a type ordinarily necessary to advance the civil rights litigation to the stage it reached before

settlement." Id. at 243, 105 S.Ct. at 1928-29. Because pre-litigation lobbying is not a necessary

precursor to the filing of a lawsuit, the district court did not abuse its discretion when it deducted

these hours during its lodestar analysis.

b. Press Conferences

This circuit has not yet decided whether prevailing partiesmayrecover attorneys'feesfor time

spent holding press conferences. The district court opined that time spent on press conferences is not

spent "on the litigation." Watkins, 807 F.Supp. at 413. The Ninth Circuit, however, has allowed

recovery when a prevailing part y shows that the press conferences "contributed, directly and

substantially, to the attainment of [the party's] litigation goals." Davis v. San Francisco, 976 F.2d

1536, 1545 (9thCir.1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir.1993). Without

considering the merits of either position, we find no abuse of discretion in the district court's

exclusion of the press-conference hours, because Appellants did not present any evidence regarding

the efficacy of the press conferences, nor did they offer to present such evidence in their request for

an evidentiary hearing.

c. Other hours excluded

We find no error in the district court's exclusion of time it considered inadequately

documented, excessive, or duplicative. Appellants did not adequately document their travel time.

Watkins, 807 F.Supp. at 413 n. 11 ("The court ... is... at a complete lossto divine where or why Mr.

Rhodes was traveling during these 224 hours."); see Von Clark, 916 F.2d at 260 ("[T]ime and time
again this court has admonished attorneys ... to keep careful time records so that the court may

determine if the hours submitted are reasonable."). Concerning the time the court characterized as

excessive or duplicative, we defer to the court's experience and understanding of the case. See

Hensley, 461 U.S. at 437, 103 S.Ct. at 1941.

2. Setting hourly rate

After determining the hoursreasonablyspent on the litigation, the court mustset a reasonable

hourly rate. Appellants submitted affidavits of their attorneys' customary billing rates, as well as

affidavits from other attorneys in the community showing the prevailing market rates in the locality

to be $150 to $200 for attorneys with more than ten years' experience, and $100 to $150 for those

with four to ten years' experience. In response, the State introduced attorneys' affidavits showing the

market range to be between $75 and $125. Based upon these affidavits, the court set reasonable

hourly rates for the lodestar calculation that were within the market range, but deviated from the

customary billing rates of appellants' attorneys.

In Islamic Center of Miss. v. Starkville, we held that if the attorney's normal billing rate is

within the range of market rates for attorneys with similar skill and experience, and the trial court

chooses a different rate, the court must articulate its reasons for doing so. 876 F.2d 465, 469 (5th

Cir.1989). Here, the court gave the following statement to support its decision:

In arriving at these figures, the court has considered the evidence submitted by the parties

relating to the local rates of attorneys, and has taken into account the experience and

expertise of each attorney, the nature and complexity of the case, including the level of skill

and expertise required by the case, and the demands imposed on the attorneys by the case.

Watkins, 807 F.Supp. at 416. Although the court correctly considered the Johnson factors when

setting the hourly rate, listing these factorsis no substitute for a discussion of the factssupporting the

court's determination of a reasonable hourly rate at odds with the normal charge of the attorney.

While the district court may have correctly chosen the hourly rates, we cannot review the court's

decision without knowing the reasoning behind the its choice. Simply tracking the language of

Johnson does not assist usin our review of the court's actions. Therefore, we reluctantly remand the

case for the district court to either (1) award each attorney's customary billing rate, or (2) state the

reasons for its decision to do otherwise.
 

5Appellants argue that the district court erred in its reduction of the lodestar, but the court did

not reduce the lodestar. Appellants are actually complaining about the court's determination of

hours reasonably spent on the litigation, which is the first step in calculating the lodestar. As

discussed earlier, the court did not err in its exclusion of hours it considered excessive,

duplicative, not adequately documented, or not expended on the litigation. 

 

6

In their appellate brief, Appellants raise reasons for an evidentiary hearing that were not

presented to the district court. We will ignore these extraneous arguments. See In re Goff, 812

F.2d 931, 933 (5th Cir.1987). 

Appellants also argue that the district court erred in its decision to discount the hourly rate

billed for travel time and work performed on clerical activities. We conclude that the district court

did not abuse its discretion by reducing these rates. See Johnson, 488 F.2d at 717 (stating that

administrative work performed by attorneys may command a lesser rate); Shirley v. Chrysler First,

Inc., 763 F.Supp. 856, 858, 861 (N.D.Miss.1991) (compensating travel time at a lesser rate).

3. Adjustment of the Lodestar

Not surprisingly, Appellants argue the lodestarshould be enhanced, while the State contends

it should be reduced. But the lodestar is presumptively reasonable. City of Burlington, --- U.S. at

----, 112 S.Ct. at 2641. The district court should not enhance the lodestar unless the prevailing party

shows that enhancement is necessary to make the award o f attorneys' fees reasonable. Blum v.

Stenson, 465 U.S. 886, 897-98, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984). After considering

the Johnson factors, including Appellants' success, the district court found that the lodestar did not

require modification.5 Watkins, 807 F.Supp. at 417. The district court has broad discretion in setting

reasonable attorneys'fees, and we conclude the court did not abuse its discretion by refusing to adjust

the lodestar.

C. Evidentiary Hearing

Appellants contend the district court should have held an evidentiary hearing to determine:

(1) the prevailing market rates for contingency and non-contingency fee cases, and (2) the necessity

of enhancement in civil rights cases.6 The party requesting the hearing has the burden to show this

court what additional evidence it could provide in the hearing that the court does not already have.

Associated Builders, 919 F.2d at 378.

The district court did not err in its refusal t o hold an evidentiary hearing. The court had
adequate documentation on the prevailing market rates in the locality; the Supreme Court recently

held that any difference in market rates between contingency and non-contingency fee cases should

not be considered, City of Burlington, --- U.S. at ----, 112 S.Ct. at 2642; and, the decision of

whether to enhance the lodestar is based upon the particular facts of each individual case.

D. Expenses

Lastly, Appellants argue the district court erred in its exclusion of certain expenses as

unreasonable. The only complaint Appellants specifically briefed is the district court's exclusion of

certain copying expenses: Appellants made twelve copies, and the court allowed compensation for

nine. The district court did not abuse its discretion in this determination.

III. CONCLUSION

We REMAND this case to allow the court to reexamine its determination of a reasonable

hourly rate. The court should either use the rate normally charged by the attorneys, or give adequate

support for a different award. We further instruct the court to include post-judgment interest on its

award of attorneys' fees, beginning from the date of the court's initial order awarding attorneys' fees.

We agree with the court in all other respects.

VACATED AND REMANDED.