*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30379

Summary Calendar

_____________________

THE APARTMENT ASSOCIATION OF GREATER

NEW ORLEANS, INC., JONATHAN JOHNSTON,

JULIE JOHNSTON, RONALD J. REID and

TIMOTHY SPAHR,

Plaintiffs-Appellants,

versus

CITY OF NEW ORLEANS,

Defendant-Appellee.

_______________________________________________________

Appeals from the United States District Court for

the Eastern District of Louisiana

(96-CV-2699-S)

_______________________________________________________

November 6, 1997

Before REAVLEY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Following the district court’s grant of their Motion for

Summary Judgment, the Apartment Association of Greater New

Orleans, Inc., Jonathan Johnston, Julie Johnston, Ronald Reed and

Timothy Spahr (Association), moved for an award of attorneys’

fees pursuant to 42 U.S.C. § 1988. The district court denied the
2

motion, and the Association appealed. Finding that the district

court provided

insufficient justification for denying attorneys’ fees, we

reverse and remand for further proceedings.

The Association filed a complaint for declaratory and

injunctive relief on August 16, 1996, challenging the

constitutionality of the City of New Orleans Municipal Ordinance

17.461 (Ordinance), which provides in pertinent part:

All Air Conditioning systems and Water Heaters in

commercial, industrial, and apartment/multi-family

dwelling units shall be subject to [annual or biannual] inspections for installation safety by the

Mechanical Inspection Bureau. . . .

The district court initially granted a preliminary

injunction enjoining the City of New Orleans (City) from

implementing or enforcing the Ordinance. The district court

subsequently granted the Association’s motion for summary

judgment holding that the Ordinance violates the Fourth Amendment

to the United States Constitution which prohibits warrantless

searches of homes except in emergency situations. The district

court asserted that the right to privacy as a separate and

distinct right guaranteed by the substantive component of the Due

Process Clause is a fundamental right which is affected by the

City’s ordinance. The Due Process Clause of the Fourteenth

Amendment prohibits enforcement of laws which infringe

fundamental rights unless the law is narrowly tailored to serve a

compelling state interest. The court found the Ordinance was not
 

1Ellwest Stereo Theatre, Inc. v. Jackson, 653 F.2d 954, 955

(5th Cir. Unit B Aug. 1981).

 

2Riddell v. National Democratic Party, 624 F.2d 539, 546 (5th

Cir. 1980)

 

3Id. at 543; Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir.

1978); see also Bell v. Schexnayder, 36 F.3d 447 (5th Cir. 1994).

Defendants bear the burden of proving the existence of special

circumstances. Williams v. Miller, 620 F.2d 199 (8th Cir. 1980);

Mid-Hudson Legal Servs., Inc. v. G & U, Inc., 578 F.2d 34 (2d Cir.

1978).

3

narrowly tailored to serve a compelling state interest, and

therefore, unconstitutional. 

The Association moved for attorney’s fees under 42 U.S.C. §

1988 which provides that the court, in its discretion, may allow

the prevailing party reasonable attorneys’ fees as a part of the

costs. The district court denied the motion stating that an

award of attorney’s fees was “not appropriate in this case.” 

Section 1988 unequivocally and expressly makes the award of

fees a question of discretion for the court, but “the discretion

afforded district courts to deny attorneys’ fees to prevailing

plaintiffs under § 1988 is exceedingly narrow.”1 When a court

finds a statute unconstitutional, “Congress has instructed the

courts to award attorneys’ fees as an incentive for parties who

prevail in protecting important constitutional rights.”2 It is

well established that a prevailing party is entitled to recover

an attorney’s fee unless there is a strong showing of special

circumstances which would render such an award unjust.3 The

courts have interpreted this to mean that “absent special
 

4Cruz v. Hauck, 762 F.2d 1230, 1233 (5th Cir. 1985) (quoting

Kirchberg v. Feenstra, 708 F.2d 991, 998 (5th Cir. 1983)(emphasis

in original)).

 

5Robinson v. Kimbrough, 652 F.2d 458, 464 (5th Cir. Aug.

1981).

 

6Farrar v. Hobby, 506 U.S. 103, 111-12 (1992).

4

circumstances, a prevailing plaintiff should be awarded section

1988 fees as a matter of course.”4 Consequently, two issues must

be determined: (1) was the Association the prevailing party for

purposes of awarding attorneys’ fees; and (2) do special

circumstances exist which would render an award of attorneys’

fees unjust.5

The Supreme Court has concluded that “a plaintiff ‘prevails’

when actual relief on the merits of his claim materially alters

the legal relationship between the parties by modifying the

defendant’s behavior in a way that directly benefits the

plaintiff.”6 In its original Complaint, the Association sought

injunctive and declaratory relief which would prevent the City

from implementing and enforcing the Ordinance. The district

court not only issued an injunction but also granted the

Association’s motion for summary judgment, and held that the

Ordinance impermissibly infringes upon fundamental rights in

violation of the Due Process Clause. The Association gained from

the suit exactly what it sought. The Association clearly is the

prevailing party. The only remaining question is whether special

circumstances exist that would render an award of attorneys’ fees
 

7Riddell, 624 F.2d at 543 (stating that such special

circumstances arise only in unusual situations).

 

811 F.3d 1284 (5th Cir. 1994).

 

9Id. at 1297 (quoting McDonald v. Doe, 748 F.2d 1055, 1057

(5th Cir. 1984)).

5

unjust. The district court’s order articulated no special

circumstances for denying the Association’s motion for attorneys’

fees. A review of the record does not reveal a special

circumstance which would render an award of attorneys’ fees

unjust.7

The City suggests that a section 1988 award is inapplicable

here because that provision was adopted to allow parties to

vindicate their rights only in cases involving racial animus or

discrimination. There is no authority for this proposition. In

Enplanar, Inc. v. Marsh,

8 the constitutional right allegedly

violated involved race discrimination, but the case does not

stand for the proposition that attorneys’ fees are only justified

in race discrimination cases. The court in Enplanar noted that

section 1988 allows fees in actions where parties seek to

vindicate rights based on the federal constitution or federal

statutes. “If it is determined that no constitutional right was

violated the predicate for the award of fees vanishes.”9 That is

not the case here.

The district court’s order is insufficient to justify a

denial of an award of attorneys’ fees and costs to the
 

10Riddell, 624 F.2d at 547 (citing Johnson v. State of

Mississippi, 606 F.2d 635, 637-39 (5th Cir. 1979)).

6

Association. We reverse the order of the district court and

remand the case for further proceedings in accord with this

opinion. An award should include an allowance for fees and costs

incurred for purposes of contesting this order in this appeal.10

REVERSE AND REMAND.