United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 07-3437/08-1139

___________

Chris Lowry, by, through, and with * 

his Mother, Wendy Crow; Colton * 

Dougan, by, through, and with * 

his Father, Frank Dougan and * 

his Mother, Leigh Dougan; Michael * 

Joseph, by, through, and with his * 

Mother, Heidi Joseph; Wendy Crow; * 

Frank Dougan; Leigh Dougan; * 

Heidi Joseph, * 

* 

Plaintiffs/Appellees, * 

* Appeals from the United States

v. * District Court for the 

* Eastern District of Arkansas.

Watson Chapel School District; * 

Charles Daniel Knight, Watson * 

Chapel School District Superintendent, * 

in his individual and official capacities, * 

* 

Defendants/Appellants, * 

* 

Charles Daniels, Watson Chapel * 

School Board President; Sandra C. * 

Boone, Vice President, in her * 

individual capacity; Donnie Hartsfield, * 

Secretary, in his individual capacity; * 

Danny Holcomb, member, in his * 

individual capacity; Jim Johnson, * 

member, in his individual capacity; * 

Maxine Nelson, member, in her * 
1

The Honorable James M. Rosenbaum, United States District Judge for the

District of Minnesota, sitting by designation. 

2

Plaintiffs brought this action through their legal representatives, Wendy Crow,

Frank Dougan, Leigh Dougan, and Heidi Joseph.

3

Superintendent Charles Daniel Knight was sued in his individual and official

capacities. Watson Chapel Junior High principal Henry Webb was sued in his

individual and official capacities. School board members Charles Daniel, Sandra C.

-2-

individual capacity; John Treglown, * 

in his individual capacity, * 

* 

Defendants, * 

* 

Henry Webb, in his individual and * 

official capacities as Principal of * 

Watson Chapel Junior High, * 

* 

Defendant/Appellant. *

___________

Submitted: June 13, 2008

Filed: September 2, 2008

___________

Before SMITH and GRUENDER, Circuit Judges, and ROSENBAUM,1

 District

Judge.

___________

SMITH, Circuit Judge.

Chris Lowry, Colton Dougan, and Micheal Joseph (collectively "plaintiffs"),2

students in the Watson Chapel School District ("school district") during the events in

question, brought this action under 42 U.S.C. § 1983, claiming that the school district,

the school district's superintendent, the principal of Watson Chapel Junior High, and

the school district's school board members (collectively referred to as "defendants")3
Boone, Donnie Hartsfield, Danny Holcomb, Jim Johnson, Maxine Nelson, and John

Treglown were sued in their individual capacities. Defendants who remained in the

case following the district court's partial grant of summary judgment were the school

district, Charles Daniel Knight, and Henry Webb.

4

The Honorable J. Leon Holmes, Chief Judge, United States District Court for

the Eastern District of Arkansas.

-3-

violated plaintiffs' rights under the First and Fourteenth Amendments. At the

beginning of the trial, the district court4

 held that plaintiffs had established a violation

of their constitutional rights and, accordingly, submitted only the issue of damages to

the jury. The jury found that plaintiffs had proven neither compensatory nor punitive

damages and awarded each plaintiff zero dollars—subsequently the district court

granted plaintiffs' motion to amend the judgment to reflect an award of nominal

damages. The district court also issued a permanent injunction and granted plaintiffs'

motion for attorneys' fees and expenses. Defendants now appeal, arguing that the

district court erred in: (1) holding that plaintiffs' First Amendment rights were

violated; (2) granting plaintiffs' motion to amend the jury verdict to reflect nominal

damages; (3) making the preliminary injunction permanent in part; and (4) awarding

plaintiffs attorneys' fees and costs. We affirm. 

I. Background

In the summer of 2006, the school district implemented a mandatory school

uniform policy ("the policy"), with specific provisions focused on grades seven

through twelve. The school board intended the policy to "promote equal educational

opportunity through economical access to appropriate school clothing and orderly,

uniform apparel standards for students." The policy required students to "wear the

school uniform while in school, on school buses, and at designated school bus stops."

Paragraph 17 of the policy stated that "any attempt to defeat the uniformity intended

by this policy is prohibited." 
5

Dougan wore a white, stretchy rubber bracelet that said "Live Pure: 1 Timothy

4:12" every day, and he was never disciplined for wearing this adornment. Other

students wore black rubber wristbands that said "Watson Chapel" that one witness

testified were sold at a pep rally.

6

The policy also stated that "No towel, scarf, bandana, do-rag, shirt, string,

chain, jewelry, special button, insignia, label, marking, different-colored stitching,

fringe, brad, stud, picture, logo, ribbon, embroidery, initials, monogram, special

buckle, or any other form of adornment may be worn on or over any part of the

uniform, except the school name, school logo, or school insignia."

-4-

Several students and parents opposed the policy or the way it was enforced, and

some of these parents and students organized a protest. On September 30, 2006, these

parents and students handed out black armbands to be worn to school in protest of the

policy on October 6, 2006. On that day, several junior and senior high school students

wore the black armbands but did not wear them over any part of the school uniform.

The school construed the student's conduct as an attempt to defeat the uniformity

intended by the policy and disciplined the students who wore the armbands citing their

violation of the uniform policy. On its face, the school uniform policy allows students

to wear jewelry, including wristbands,5

 "but the jewelry may not overlap any part of

the uniform."6

 Plaintiffs each wore the armbands to school either on the wrist, forearm

or biceps and none wore the armband over any part of the uniform. Each plaintiff was

disciplined for wearing the armband.

Lowry also handed out a flyer critical of the school uniform policy without

obtaining approval from the principal before doing so. The one-line 2006-2007

student literature review policy prohibited the "distribution of petitions or other

printed matter not approved in advance by the principal." Lowry was also disciplined

for violation of the student literature review policy. 

On October 10, 2006, plaintiffs filed a complaint claiming that defendants

violated the First and Fourteenth Amendments by punishing plaintiffs for wearing
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black armbands as a symbol of protest. The complaint requested declaratory relief,

preliminary and permanent injunctive relief, damages, and attorneys' fees and costs.

Plaintiffs simultaneously moved for a preliminary injunction to stop defendants from:

(1) disciplining plaintiffs in any way for wearing the black armbands; (2) taking any

further disciplinary action against plaintiffs on account of the black armbands; and (3)

excluding plaintiffs from participation in school clubs or extracurricular activities. The

motion also requested that defendants be ordered to expunge the discipline of

plaintiffs related to wearing the black armbands from all student records. The district

court granted the motion and ordered that defendants be preliminarily enjoined from

disciplining any student who wore a band substantially similar to plaintiffs' around the

wrist.

On February 22, 2007, plaintiffs filed an amended complaint which included

three new claims for relief in addition to the original claim, which was count one: (1)

discipline of students for wearing armbands violated the First Amendment; (2) the

student apparel policy violated the First Amendment; (3) defendants' enforcement of

the student apparel policy violated plaintiffs' right to due process; (4) the student

literature policy violated the First Amendment. 

Subsequently, defendants filed a motion for partial summary judgment arguing

that the school board members and administrators were entitled to qualified immunity

on all of the claims against them in their individual capacities. The motion was

granted in part and denied in part. In its order and opinion addressing this motion, the

district court found that the student uniform policy contravened no provision of the

Constitution and that, in the alternative, a reasonable school board member would not

have known that the policy was unconstitutional. As to the student literature review

policy, the district court surmised that we, the Eighth Circuit, would likely hold the

2006-2007 student literature review policy unconstitutional, but the district court

could not find that the law was so clearly established that school board members

should have known that it was unconstitutional. Therefore, the school board members
7

At the close of plaintiffs' case, the district court entered judgment as a matter

of law on count three against plaintiffs finding that the enforcement of the student

apparel policy did not violate their right to due process. 

-6-

were entitled to qualified immunity on that issue. Because there was a genuine issue

of material fact as to whether Knight and Webb imposed discipline to suppress a

viewpoint, the court denied summary judgment on the issue of qualified immunity

with respect to the claims against Knight and Webb in their individual capacities. The

court found that there was evidence that the discipline was imposed to suppress a

particular viewpoint and that, absent evidence that wearing the armbands or

distributing the flyers would substantially interfere with the work of the school, the

right of the students to engage in such conduct was established in Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969). 

As the trial began on September 11, 2007, defendants stipulated that: (1) the

discipline imposed on plaintiffs for wearing black armbands to school on October 6,

2006, was imposed because the black armbands signified disagreement with the

student apparel policy; and (2) the wearing of the black armbands caused no material

disruption or substantial interference with school. Based on these stipulations, the

district court held that the facts necessary to establish a violation of plaintiffs' rights

under the First and Fourteenth Amendment as outlined in Tinker were no longer in

dispute, leaving damages as the only factual issue for the jury.7

 The district court

instructed the jury, without objection, "If you find that the plaintiffs' damages have no

monetary value, then you must return a verdict for the plaintiffs in the nominal amount

of One Dollar ($1.00)."

On September 13, 2007, the jury found, in relevant part, that plaintiffs each had

proven zero dollars in damages by a preponderance of the evidence. The next day, the

court entered judgment in favor of Knight and Webb on plaintiffs' claims against them

in their individual capacities for money damages. In the weeks following, plaintiffs
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timely filed a motion to alter or amend the judgment to reflect an award of one dollar

in nominal damages. The court granted the motion. 

On October 31, 2007, the district court held that the previously entered

preliminary injunction would be made permanent in part and dissolved in part. The

court permanently enjoined the defendants from disciplining any student for wearing

a band substantially similar to plaintiffs' armband around the wrist or any part of the

arm not touching or covering any part of the school uniform. The court dissolved as

moot that portion of the injunction enjoining defendants from using the events of

October 6, 2006, in progressive discipline or to the detriment of plaintiffs. The district

court also declined to enjoin the 2006-2007 student literature policy because that

policy was no longer in effect.

Two weeks later, plaintiffs filed an application for fees and expenses seeking

an award of attorneys' fees in the amount of $57,060.00 and an expenses award of

$8,101.54. They titled this document "Plaintiffs' Application for Fees and Expenses"

and attached several affidavits and exhibits to the document. This fee represented a

$17,235.50 reduction from their total fee based on plaintiffs' attorneys' redacting time

spent on non-prevailing issues. On December 20, 2007, the district court entered

judgment for attorneys' fees and expenses in favor of plaintiffs against the school

district in the amount of $45,601.54 plus post-judgment interest—$37,500 for

attorneys' fees and $8,101.54 for out-of-pocket expenses.

II. Discussion

Defendants argue on appeal that the district court erred in: (1) holding that

plaintiffs' First Amendment rights were violated; (2) granting plaintiffs' motion to

amend the jury verdict to reflect nominal damages; (3) making the preliminary

injunction permanent in part; and (4) awarding plaintiffs' attorneys' fees and costs. 
-8-

 A. First Amendment Violation

Defendants argue that the district court erred in holding that discipline of

plaintiffs for wearing armbands that protested the school's dress code was

unconstitutional. 

In reviewing a district court's judgment following a bench trial, we

normally review the court's factual findings for clear error and its

conclusions of law de novo. An appellate court's review, however, is

unique in the context of a First Amendment claim. When such a claim is

raised, we must make an independent examination of the whole record

. . . to assure . . . that the judgment does not constitute a forbidden

intrusion on the field of free expression. 

Doe v. Pulaski County Special Sch. Dist., 306 F.3d 616, 621 (8th Cir. 2002) (internal

citations and quotations omitted).

On the morning of trial, defendants stipulated that: (1) the discipline imposed

on plaintiffs for wearing black armbands to school on October 6, 2006, was imposed

because the black armbands signified disagreement with the student apparel policy;

and (2) the wearing of the black armbands caused no material disruption or substantial

interference with school. In light of these stipulations, the district court held that the

facts necessary to establish a violation of plaintiffs' rights under the First and

Fourteenth Amendment, as interpreted in Tinker, were no longer in dispute. 393 U.S.

503 (1969). We agree. 

In Tinker, the Supreme Court held that a school's regulation prohibiting students

from wearing armbands to school and suspending students refusing to remove the

armbands was an unconstitutional denial of the students' right to free expression. Id.

at 514. The facts here nearly mirror Tinker. There, a group of adults and students in

Des Moines, Iowa, held a meeting at a student's home to discuss publicizing their

objections to the Vietnam war and decided to wear black armbands on a specific date

to show their support for a truce. Id. at 504. The principals of the schools heard about
-9-

the planned protests and, before the date came, they passed a policy that any student

wearing an armband to school would be asked to remove it and be suspended if he

refused. Id. When the day came, some students wore the black armbands, and they

were sent home and told they were suspended until they returned without their

armbands. Id. The Supreme Court reversed a decision of the district court and of this

court upholding "the constitutionality of the school authorities' action on the ground

that it was reasonable in order to prevent disturbance of school discipline." Id. at

504–05. The Supreme Court stated: 

The District Court recognized that the wearing of an armband for the

purpose of expressing certain views is the type of symbolic act that is

within the Free Speech Clause of the First Amendment. As we shall

discuss, the wearing of armbands in the circumstances of this case was

entirely divorced from actually or potentially disruptive conduct by those

participating in it. It was closely akin to 'pure speech' which, we have

repeatedly held, is entitled to comprehensive protection under the First

Amendment. First Amendment rights, applied in light of the special

characteristics of the school environment, are available to teachers and

students. It can hardly be argued that either students or teachers shed

their constitutional rights to freedom of speech or expression at the

schoolhouse gate. This has been the unmistakable holding of this Court

for almost 50 years . . . . The Fourteenth Amendment, as now applied to

the States, protects the citizen against the State itself and all of its

creatures-Boards of Education not excepted. These have, of course,

important, delicate, and highly discretionary functions, but none that they

may not perform within the limits of the Bill of Rights. That they are

educating the young for citizenship is reason for scrupulous protection

of Constitutional freedoms of the individual, if we are not to strangle the

free mind at its source and teach youth to discount important principles

of our government as mere platitudes. On the other hand, the Court has

repeatedly emphasized the need for affirming the comprehensive

authority of the States and of school officials, consistent with

fundamental constitutional safeguards, to prescribe and control conduct

in the schools . . . . The problem posed by the present case does not relate

to regulation of the length of skirts or the type of clothing, to hair style,

or deportment. It does not concern aggressive, disruptive action or even
-10-

group demonstrations. Our problem involves direct, primary First

Amendment rights akin to 'pure speech.' 

Id. at 505–07 (internal citations and quotations omitted).

Defendants attempt to distinguish Tinker by emphasizing that the Tinker

students protested the federal government's Vietnam war policy, whereas here the

protest object was merely a school dress code. This distinction is immaterial. Whether

student speech protests national foreign policy or local school board policy is not

constitutionally significant. As the Supreme Court stated in W. Va. State Bd. of Educ.

v. Barnette:

Such Boards are numerous and their territorial jurisdiction often small.

But small and local authority may feel less sense of responsibility to the

Constitution, and agencies of publicity may be less vigilant in calling it

to account. The action of Congress in making flag observance voluntary

and respecting the conscience of the objector in a matter so vital as

raising the Army contrasts sharply with these local regulations in matters

relatively trivial to the welfare of the nation. There are village tyrants as

well as village Hampdens, but none who acts under color of law is

beyond reach of the Constitution.

319 U.S. 624, 637–38 (1943). Defendants also point out that the school in Tinker

adopted its regulations for the specific purpose of stopping rumored protests, while

here the student apparel policy was in place before any mention of a protest occurred.

However, the board's intent in creating and its timing of enforcement of the student

uniform policy are irrelevant. The constitutionality of the uniform policy is not at

issue—it has been deemed constitutional. We find defendants' attempts to

meaningfully distinguish Tinker unconvincing. We hold that Tinker isso similar in all

constitutionally relevant facts that its holding is dispositive. In both cases, a school

district punished students based on their non-disruptive protest of a government
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policy. The district court was correct to find that, in light of defendants' fact

stipulations, a violation of plaintiffs' First Amendment rights has been established.

Defendants also argue the district court was wrong to apply Tinker here because

subsequent case law has narrowed Tinker's scope. See Bethel Sch. Dist. No. 403 v.

Fraser, 478 U.S. 675, 685–86 (1986) (holding that the school district's discipline of

a student for delivering a sexually explicit though not legally obscene speech at a

school assembly was constitutional and that the school was entitled to dissociate itself

from the speech to demonstrate that vulgarity was inconsistent with the fundamental

values of public school education); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,

272–73 (1988) (concluding "that the standard articulated in Tinker for determining

when a school may punish student expression need not also be the standard for

determining when a school may refuse to lend its name and resources to the

dissemination of student expression").

Recently, in Morse v. Frederick, the Supreme Court held that "schools may take

steps to safeguard those entrusted to their care from speech that can reasonably be

regarded as encouraging illegal drug use." — U.S. —, 127 S. Ct. 2618, 2622 (2007).

The Supreme Court held that the school officials "did not violate the First Amendment

by confiscating the pro-drug banner and suspending the student responsible for it." Id.

The Supreme Court also stated that it distilled two basic principles from Fraser:

First, Fraser's holding demonstrates that the constitutional rights of

students in public school are not automatically coextensive with the

rights of adults in other settings. Had Fraser delivered the same speech

in a public forum outside the school context, it would have been

protected. In school, however, Fraser's First Amendment rights were

circumscribed in light of the special characteristics of the school

environment. Second, Fraser established that the mode of analysis set

forth in Tinker is not absolute. Whatever approach Fraser employed, it

certainly did not conduct the "substantial disruption" analysis prescribed

by Tinker.
8

Defendants also argue that on the morning of trial the district court held the

2006–2007 student literature policy unconstitutional and in so doing, ruled on a moot

issue because by that time defendants had instituted a new student literature policy.

The student literature review policy issue was partially disposed of at the summary

judgment stage. In the district court's ruling on defendants' partial motion for summary

judgment, the district court surmised that we would find the student literature policy

unconstitutional but granted summary judgment to the school board because the

district court found that the right at issue was not clearly established. The record

indicates that, tied to this issue of the student literature policy, there was no damage

finding, no declaratory relief, no injunction, and no causation finding. We would

decline to review this issue if it were clear that our only basis for review was the

preliminary finding of the district court that we "probably" would have held the

literature policy unconstitutional. See Meuir v. Greene County Jail Employees, 487

F.3d 1115, 1119 (8th Cir. 2007) ("Article III of the United States Constitution

confines the jurisdiction of federal courts to justiciable cases and controversies.").

However, the record is unclear whether plaintiffs sought attorneys' fees based on the

student literature policy—during oral argument plaintiffs' counsel stated that no

attorneys' fees were requested based on the student literature policy, but both the

exhibits attached to the application for fees and the district court opinion addressing

fees include discussion of the student literature review policy. Even assuming that the

student literature review policy affected the attorneys' fee award, or at least was

included in the request, mootness is not an issue because the voluntary cessation

exception to the mootness doctrine applies—defendants' voluntary change of the

potentially unconstitutional policy did not moot the issue. See Charleston Housing

Authority v. United States Dept. of Agriculture, 419 F.3d 729, 740 (8th Cir. 2005)

("[I]n general, a defendant's voluntary cessation of a challenged practice does not

deprive a federal court of its power to determine the legality of the practice.") (internal

quotations and citation omitted); see also United States v. Concentrated Phosphate

Export Ass'n, 393 U.S. 199, 203 (1968) ("Mere voluntary cessation of allegedly illegal

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Id. at 2626–27 (internal citations and quotations omitted). Defendants accurately

summarize these Supreme Court holdings described above. Yet, Tinker remains good

law though modified for the circumstances described in Fraser and Morse neither of

which obtain here. Neither Fraser nor Morse involved punishment of a non-disruptive

student protest that violated no school policy based upon student viewpoint. We,

therefore, apply Tinker.

8
conduct does not moot a case; if it did, the courts would be compelled to leave (t)he

defendant . . . free to return to his old ways. A case might become moot if subsequent

events made it absolutely clear that the allegedly wrongful behavior could not

reasonably be expected to recur.") (internal quotations and citations omitted). 

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B. Motion to Amend the Judgment 

Defendants also argue that the district court erred in granting plaintiffs' motion

to amend the judgment regarding nominal damages. 

A district court has broad discretion in determining whether to grant or

deny a motion to alter or amend judgment pursuant to Rule 59(e), and

this court will not reverse absent a clear abuse of discretion. It should be

noted that Rule 59(e) motions serve the limited function of correcting

manifest errors of law or fact or to present newly discovered evidence.

United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)

(internal citations and quotations omitted). 

Defendants claim that plaintiffs waived any right to nominal damages after

failing to raise the issue of inconsistent verdicts before the jury was released.

According to defendants, the verdict is inconsistent because although the jury was

instructed that it must award nominal damages, it returned a verdict awarding

plaintiffs zero dollars. Defendants argue that the jury chose to disregard the award of

nominal damages because it felt that plaintiffs were not entitled to even nominal

damages. A party waives an objection to an inconsistent verdict if an objection is not

made before the jury is discharged. See Dairy Farmers of Am., Inc. v. Travelers Ins.

Co., 391 F.3d 936, 945 (8th Cir. 2004) (finding that "DFA waived its claim of

inconsistent verdicts by failing to object to the inconsistency before judgment was

entered"). However, we agree with the district court's finding that there is no

inconsistent verdict here. To be inconsistent, a jury verdict must reach contradictory
-14-

factual findings. See e. g., Doe v. Washington County, 150 F.3d 920, 923–24 (8th Cir.

1998) ("The jury found liability on the part of the county, but not on the part of the

sheriff in his official capacity. The county correctly asserts that the jury's verdict is

inconsistent in this respect. A suit against a county official in his official capacity is

the equivalent of a suit against the county itself. The official is distinct only in his

individual capacity"). The jury's failure to follow the court's instruction is not perforce

an inconsistent verdict requiring that it be raised before the jury was released. There

is no inconsistency between the jury finding of no damages and any other aspect of

the jury verdict. Waiver is not an issue here. 

As the district court found, pursuant to Risdal v. Halford, nominal damages

must be awarded when a plaintiff establishes a violation of the right to free speech.

209 F.3d 1071, 1072 (8th Cir. 2000) (holding that an award of nominal damages is

required "upon proof of an infringement of the first amendment right to speak"). The

jury was required to award plaintiffs nominal damages, and therefore, the district court

did not abuse its discretion in amending the judgment to reflect a nominal damage

award as a matter of law. 

C. Permanent Injunction 

Defendants next argue that the district court erred in permanently enjoining

them from disciplining any student who wears a band substantially similar to the ones

plaintiffs wore around the wrist. We review the district court's issuance of a permanent

injunction for abuse of discretion. Kennedy Bldg. Assoc. v. CBS Corp., 476 F.3d 530,

533–34 (8th Cir. 2007). 
-15-

A court must consider the following factors in determining whether to

issue a permanent injunction: (1) the threat of irreparable harm to the

movant; (2) the state of balance between this harm and the injury that

granting the injunction will inflict on other parties; (3) whether the

movant proves actual success on the merits; and (4) the public interest.

See Guttau, 190 F.3d at 847 (adapting the preliminary injunction factors

announced in Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113

(8th Cir.1981), to a review of a permanent injunction). 

Forest Park II v. Hadley, 336 F.3d 724, 731 (8th Cir. 2003).

Defendants argue that there has been no evidence of irreparable harm to

students other than plaintiffs, and so the injunction should have been denied.

However, "[t]he loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373

(1976). We hold that the district court properly weighed the factors noted above,

including balancing the harms, and did not abuse its discretion in permanently

enjoining defendants from disciplining any student for wearing a band substantially

similar to those worn by plaintiffs in this case.

D. Attorneys' Fees 

Finally, defendants argue that the district court erred in awarding plaintiffs

attorneys' fees and costs. "We review de novo both the determination of whether a

litigant is a prevailing party, and the legal issues related to the award of attorney fees."

Advantage Media, L.L.C. v. City of Hopkins, 511 F.3d 833, 836 (8th Cir. 2008)

(internal quotations and citations omitted). We review the actual award of attorneys'

fees and costs for abuse of discretion. Thompson v. Wal-Mart Stores, Inc., 472 F.3d

515, 516 (8th Cir. 2006). And, we review the district court's application of its local

rules for abuse of discretion. Northwest Bank and Trust Co. v. First Ill. Nat'l Bank,

354 F.3d 721, 725 (8th Cir. 2003). 
-16-

Pursuant to 42 U.S.C. § 1988(b) "[i]n any action or proceeding to enforce a

provision of section[] . . . 1983 . . . of this title . . . the court, in its discretion, may

allow the prevailing party, other than the United States, a reasonable attorney's fee as

part of the costs. . . ." 

Defendants first argue that the district court should have dismissed the

applications for fees and costs because plaintiffs failed to file the proper pleadings

with the district court. Defendants argue that plaintiffs violated Federal Rule of Civil

Procedure 54(d)(2) and local rules by titling the document that they filed an

"application" instead of a "motion." According to Federal Rule of Civil Procedure

54(d)(2)(A), "[a] claim for attorney's fees and related nontaxable expenses must be

made by motion unless the substantive law requires those fees to be proved at trial as

an element of damages." Eastern District of Arkansas Local Rule 54.1(a) states "[i]n

any case in which attorney's fees are recoverable under the law applicable to that case,

a motion for attorney's fees shall be filed with the Clerk . . . ." 

Defendants also argue that plaintiffs' application should have been dismissed

because it was filed as one document and Eastern District of Arkansas Local Rule

7.2(a) requires that "[a]ll motions except those mentioned in paragraph (d) shall be

accompanied by a brief consisting of a concise statement of relevant facts and

applicable law." Here, plaintiffs did not attach a brief to the application.

Defendants brought these errors to the district court's attention below, and

plaintiffs requested that the district court look past the violations. The court ruled on

the merits, granting attorneys' fees and expenses, without expressly addressing these

two issues. Our case law indicates that we may assume that the district court implicitly

ruled to allow the application to be treated as a motion and a brief. See Sugarbaker v.

SSM Health Care, 187 F.3d 853, 855 (8th Cir. 1999) (assuming that the district court

implicitly gave hospital leave to file its motion out of time when it addressed the

merits of hospital's fee request). We conclude that it was not an abuse of discretion for

the district court to excuse the minor pleading errors cited by defendants. Designating
9

Although defendants do not directly argue on appeal that plaintiffs do not

qualify as a prevailing party, as a preliminary matter, we affirm the district court's

finding that plaintiffs qualify as a prevailing party for purposes of an attorneys' fee

award. "At the outset we note[] that no fee award is permissible until the plaintiff has

crossed the 'statutory threshold' of prevailing party status." Tex. State Teachers Ass'n

v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989) (holding that plaintiffs were

prevailing parties because they obtained judgment vindicating their First Amendment

rights as public employees and materially altered the school district's policy limiting

the rights of teachers to communicate with each other concerning employee

organizations and union activities.) The Supreme Court has stated: 

[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at

least some relief on the merits of his claim. The plaintiff must obtain an

enforceable judgment against the defendant from whom fees are sought,

or comparable relief through a consent decree or settlement. Whatever

relief the plaintiff secures must directly benefit him at the time of the

judgment or settlement. Otherwise the judgment or settlement cannot be

said to affec[t] the behavior of the defendant toward the plaintiff. Only

under these circumstances can civil rights litigation effect the material

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the motion an application was a de minimis error—the only discrepancies from the

federal and local rules was its title and its status as a single pleading rather than two

separate documents. We believe the district court implicitly found that these errors

were not enough to merit dismissal of the pleadings, or even enough to require

amendment. We conclude that decision was not an abuse of discretion because the

application contained all of the necessary information, was timely filed, and

defendants have not claimed they were prejudiced. Rather, defendants emphasize

alleged silver bullet technicalities that would dispatch plaintiffs' attorneys' fees. The

district court acted within its discretion by rejecting defendants' argument that the

pleading was insufficient. 

Next, defendants argue that because plaintiffs only received nominal damages

they should not receive attorneys' fees, or at most, a very small amount—in essence

defendants argue that plaintiffs' victory was merely technical or de minimis.9
alteration of the legal relationship of the parties and thereby transform

the plaintiff into a prevailing party. In short, 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." 

Farrar, 506 U.S. at 111–12. 

Here, the district court held that plaintiffs were the prevailing party for purposes

of an attorneys' fee award. And we agree because they succeeded in effecting the legal

relationship between the parties by obtaining both preliminary and permanent

injunctions and nominal damages. The question is, therefore, not if plaintiffs should

have received an attorneys' fee award but how much that award should be. 

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Defendants cite Farrar v. Hobby to support this argument. 506 U.S. 103, 114–15

(1992) ("Where recovery of private damages is the purpose of . . . civil rights

litigation, a district court, in fixing fees, is obligated to give primary consideration to

the amount of damages awarded as compared to the amount sought") (quoting

Riverside v. Rivera, 477 U.S. 561, 585 (1986)). In Farrar, private damages were the

purpose of the litigation, and of the $17 million requested in that case, the plaintiff

received only nominal damages and no injunctive or declaratory relief. Id. at 107–08.

Here, in contrast, the purpose of the litigation was not private damages. The Supreme

Court has stated that: 

Because damages awards do not reflect fully the public benefit advanced

by civil rights litigation, Congress did not intend for fees in civil rights

cases, unlike most private law cases, to depend on obtaining substantial

monetary relief. Rather, Congress made clear that it intended that the

amount of fees awarded under [§ 1988] be governed by the same

standards which prevail in other types of equally complex Federal

litigation, such as antitrust cases and not be reduced because the rights

involved may be nonpecuniary in nature. 

Riverside, 477 U.S. at 575 (internal citations and quotations omitted). Although

plaintiffs received only nominal damages, their victory was not merely technical.
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Plaintiffs obtained an injunction that benefitted all of the students in the school

district, and the free speech right vindicated was not readily reducible to a sum of

money. We hold that the district court did not err in finding that plaintiffs' victory was

more than merely technical. 

Defendants also argue that because plaintiffs prevailed on only one of the four

counts in their complaint, the district court should have awarded 25% of fees instead

of 50%. The district court awarded $37,500 in attorneys' fees, which is approximately

one-half of the total fees incurred. Defendants' contention that the district court was

required to calculate the award based on a percentage of counts in the complaint on

which plaintiffs' received damages lacks precedential support. Instead, our case law

has rejected a similar, arithmetically simplistic fee-calculation argument. See

Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 772 (8th Cir. 2000) (rejecting the

argument that because Barton only prevailed on one of her six original claims, her fee

award of 70% was too high). 

In fact, "[t]here is no precise rule or formula for making these determinations.

The district court may attempt to identify specific hours that should be eliminated, or

it may simply reduce the award to account for the limited success. The court

necessarily has discretion in making this equitable judgment." Hensley v. Eckerhart,

461 U.S. 424, 436–37 (1983). The Supreme Court has established: 

[C]ertain principles to guide the discretion of the lower courts in setting

fee awards in cases where plaintiffs have not achieved complete success.

Where the plaintiff's claims are based on different facts and legal

theories, and the plaintiff has prevailed on only some of those claims, we

indicated that [t]he congressional intent to limit [fee] awards to

prevailing parties requires that these unrelated claims be treated as if they

had been raised in separate lawsuits, and therefore no fee may be

awarded for services on the unsuccessful claim. In the more typical

situation, where the plaintiff's claims arise out of a common core of facts,

and involve related legal theories, the inquiry is more complex. In such

a case, we indicated that the most critical factor is the degree of success
10In Hensley, the Supreme Court stated that "[t]he amount of the fee, of course,

must be determined on the facts of each case. On this issue the House Report simply

refers to twelve factors. . . . " 461 U.S. at 429–30. Further, the Court noted the

following as factors the district court should take into consideration: 

(1) the time and labor required; (2) the novelty and difficulty of the

questions; (3) the skill requisite to perform the legal service properly; (4)

the preclusion of 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. at 430 n.3.

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obtained. We noted that in complex civil rights litigation, the plaintiff

often may succeed in identifying some unlawful practices or conditions,

but that the range of possible success is vast, and the achievement of

prevailing party status alone may say little about whether the expenditure

of counsel's time was reasonable in relation to the success achieved. We

indicated that the district courts should exercise their equitable discretion

in such cases to arrive at a reasonable fee award, either by attempting to

identify specific hours that should be eliminated or by simply reducing

the award to account for the limited success of the plaintiff.

Tex. State Teachers Ass'n, 489 U.S. at 789–90 (internal citations and quotations

omitted).10

It is certainly true that the district court was required to take into account the

amount of success plaintiffs had in determining a percentage of recovery. It did so.

The district court considered plaintiffs' success on their claim that defendants violated

their right to free speech and that plaintiffs received nominal damages and a

preliminary and permanent injunction prohibiting defendants from disciplining any
11Defendants argue that the school district admitted from the beginning of the

litigation that plaintiffs were punished for protesting the student apparel policy and,

therefore, plaintiffs' counsel should not be compensated for trial preparation. We find

this argument unpersuasive and agree with the district court that the record shows

instead that it first appeared that defendants may concede that they punished plaintiffs

based on their viewpoint less than a week before trial. Therefore, the district court did

not abuse its discretion in awarding fees for trial preparation time. 

We also reject defendants' argument that after plaintiffs were successful on the

preliminary injunction hearings, the holdings of the district court were essentially the

same, and therefore, time attorneys spent on the case after that point was unnecessary.

We agree with plaintiffs that if the litigation had ended at that point, the injunction

would have been dissolved and the parties would not have been able to secure a

permanent injunction or any fee award.

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student wearing an armband similar to the band worn in this case. Plaintiffs also

received a preliminary injunction preventing defendants from counting the protest

against the plaintiffs in the school's progressive discipline system. The district court

concluded that

in view of the time expended, the results obtained, the skill necessary to

perform the legal services properly, the customary fee for such services,

and the experience, reputation, and ability of the attorneys, and after

considering the record of this case as a whole, . . . [$37,500]

represent[ed] a reasonable fee.

We hold that the district court was acting within its discretion in deciding such a fee

award.11

III. Conclusion

For the foregoing reasons, we affirm the district court.

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