IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________________________

No. 97-20412

(Summary Calendar)

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LEE SCHAM; J. CHARLES WHITEFIELD,

Plaintiffs,

LEE SCHAM,

Plaintiff-Appellant,

RANDALL L. KALLINEN,

Movant-Appellant,

versus

DISTRICT COURTS TRYING CRIMINAL

CASES, HARRIS COUNTY TEXAS;

DOUG SHAVER, Administrative Judge;

GEORGE H. GODWIN; Judge; BRIAN RAINS,

Judge; CAROL DAVIES, Judge; WILLIAM

T. HARMON, Judge; MICHAEL WILKINSON,

Judge; DEBBIE MANTOOTH, Judge;

JEANNINE BARR, Judge; JAY W. BURNETT,

Judge; JAN KROCKER, Judge; H. LON

HARPER, Judge; DENISE COLLINS,

Judge; MICHAEL T. MCSPADDEN, Judge;

TED POE, Judge; JOE KEGANS, Judge;

MARY LOU KEEL, Judge; W. R. VOIGHT,

Judge; DOUG SHAVER, Judge; JIM

WALLACE, Judge; JIM BARR, Judge;

MARY BACON, Judge; CAPRICE COSPER,

Judge; LUPE SALINAS, Judge,

Defendants-Appellees.

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Appeals from the United States District Court

for the Southern District of Texas

_________________________________________________ August 7, 1998

Before WIENER, BARKSDALE, AND EMILIO M. GARZA, Circuit Judges.2

WIENER, Circuit Judge:

In this civil rights action, Plaintiff-Appellant Lee Scham and

his attorney before the district court, Movant-Appellant Randall L.

Kallinen (collectively, “appellants”), appeal that court’s denial

of their application for attorneys’ fees. Finding that the court

did not abuse its discretion in denying fees, we affirm.

I

FACTS AND PROCEEDINGS

In 1989, the administrative judge for the criminal district

courts of Harris County, Texas, issued an order prohibiting the

Harri s County district clerk and sheriff from disclosing the

“street addresses or telephone numbers of any defendant in any case

[pending in the courts] until an attorney is hired by the defendant

or an attorney is appointed by the court to represent said

defend ant.” This order was designed to limit direct mail

solicitation from criminal defense attorneys to criminal

defendants. Scham, a criminal defense attorney practicing in

Harris County, filed suit in federal court pursuant to 42 U.S.C. §

1983 against the Harris County district courts tr ying criminal

cases and twenty-two criminal judges (collectively, “appellees”),

seeking an injunction prohibit ing enforcement of the order. He

alleged that the order violated his First Amendment right to free

speec h and his substantive and procedural due process rights and

right to equal protection under the Fourteenth Amendment. Scham1 Tex. Rev. Civ . Stat. Ann. art. 6252-17(a) (Vernon Supp.

1990).

3 also raised a supplemental state law claim for violation of the

Texas Open Records Act. 1

The district court granted summary judgment in favor of Scham,

holding that appellees did not have authority under Texas state law

to issue the order, i.e., that their actions were ultra vires

, and

that the order was therefore void. The court noted that Scham had

a federal constitutional right not to be deprived of inform ation

based on a void order, but specifically avoided ruling on his

federal civil rights claims, concluding that federal court doctrine

required that it rule first on the dispositive state law claim.

The court issued a permanent injunction against enforcement of the

order.

Scham subsequently filed a Bill of Costs and Motion for

Attorneys’ Fees pursuant to 42 U.S.C. § 1988, seeking over

$624,000. Without articulating its reason, the district court

denied the application for fees in its entirety. The court also

denied Scham’s motion for reconsideration, seeking over

$20,000,000, and his request for findings of fact and conclusions

of law. This appeal followed.

II

ANALYSIS

A. Standard of Review

We review a district court’s denial of attorneys’ fees for an2 Cooper v. Pentecost , 77 F.3d 829, 831 (5th Cir. 1996).

3 Id.

4 42 U.S.C. § 1988.

5 Watkins v. Fordice , 7 F.3d 453, 456 (5th Cir. 1993).

6 Espino v. Besteiro , 708 F.2d 1002, 1005 (5th Cir. 1983).

7 Id. (quoting Gates v. Collier

, 616 F.2d 1268, 1275 (5th Cir.

1980)) (emphasis in original).

4 abuse of discretion. 2 Underlying factual determinations, such as

whether a party is a “prevailing party,” are reviewable only for

clear error. 3

B. Applicable Law

The Civil Rights Attorneys’ Fees Act provides that “[i]n any

action or proceeding to enforce a provision of [42 U.S.C. § 1983],

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.” 4 “To attain prevailing party status the plaintiff must

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

caused the defendants to remedy the [defendants’ behavior].” 5 Once

the plaintiff has established his status as a “prevailing party,”

a district court’s discretion to deny attorney’s fees and costs is

“extremely narrow.” 6 “Absent special circumstances that would

render such an award unjust, a prevailing plainti ff should be

awarded § 1988 fees ‘ as a matter of course .’” 7

Appellees maintain that Scham is n ot a prevailing party for

purposes of § 1988. First, they argue that fees are not warranted,8 In his motion for summary judgment, Scham did argue that

appellees wer e without authority to issue the order. Appellees

insist, however, that whereas Scham made thi s assertion in

furtherance of his federal claims, the district court granted

summary judgment on state law grounds

—— thus depriving Scham of

prevailing party status. Scham never mentioned his supplemental

Texas Open Records Act claim in his summary judgment motion.

9 Texas State Teachers Assoc. v. Garland Indep. Sch. Dist.

, 489

U.S. 782, 792 (1989).

10 Watkins , 7 F.3d at 456.

5 as the district court granted summary judgment on the narrow state

law ground that appellees’ actions were ultra vires

. Accordingly,

they submit, Schamdid not succeed on any federal claim. 8 Next,

a ppellees assert that Scham’s success was only limited, and t hus

does not justify an award of fees: “[A] technical victory may be

so insignificant

. . . as to be insufficient to support prevailing

party status.” 9

We find both these arguments un availing. “A plaintiff

prevails if the relief obtained, through judgment or settlement,

materially alters the defendants’ behavior in a way directly

benefitting the plaintiff.” 10 In this case, Scham’s suit satisfied

both prongs o f the test for a prevailing party: (1) the goal of

the lawsuit —— a permanent injunction prohibiting the enforcement

of the order

—— was achieved; and (2) the lawsuit caused the

appellees to alter their behavior. Furthermore, we have previously

held that a plaintiff may be deemed a prevailing party if he

prevails on a supplemental state law claim which arises from a

common nucleus of fact with his federal constitutional claims, if1 1 Williams v. Thomas

, 692 F.2d 1032, 1036 (5th Cir. 1982),

cert. denied , 462 U.S. 1133 (1983).

1 2 Fair Housing Council v. Landow

, 999 F.2d 92, 96 (4th Cir.

1993) (quoting Sun Publ’g Co. v. Mecklenburg News, Inc. , 823 F.2d

818, 819 (4th Cir. 1987)); s ee also Lewis v. Kendrick

, 944 F.2d

949, 957-58 (1st Cir. 1991); Brown v. Stackler

, 612 F.2d 1057, 1059

(7th Cir. 1980).

13 Brown , 612 F.2d at 1059.

6 the court chooses to avoid ruling on the constitutiona l issues. 1 1

As such, appellants are entitled to attorneys’ fees pursuant to §

1988 unless there are special circumstances dictating the denial of

fees.

We conclude there are special circumstances that justify the

district court’s denial of fees in this case. Other circuits have

held that “a district court may, in its discretion, deny a request

for attorneys’ fees in its entirety when the request, submitted

p ursuant to 42 U.S.C. § 1988, is so excessive it ‘shock[s] th e

conscience of the court.’” 12 We find the reasoning of the Seventh

Circuit particularly persuasive in this context:

If, as appellant argues, the court were required to award

a reasonab le fee when an outrageously unreasonable one

has been asked for, claimants would be encouraged to make

unreasonable demands, knowing that the only unfavorable

consequence of such conduct would be reduction of their

fee to what they should have asked for in the first

place . To discourage such greed a severer reaction is

needful. 13

This case presents just such a situation. It is well-settled

that the party seeking attorneys’ fees bears the burden of proving14 Von Clark v. Butler , 916 F.2d 255, 259 (5th Cir. 1990).

15 Watkins , 7 F.3d at 457.

1 6 Appellant Kallinen submitte d only daily totals of his time

spent on this case, failing to break down those totals by task. As

such, in most instances it is impossible to ascertain how much time

he spent working on any individual aspect of the case.

7 the reasonableness of his requested fee award, 14 and that he may not

be compensated for time that is excessive, duplic ative, or

inadequately documented. 15 During the short, one-year pendency of

this case, discovery was limited, and there were no meetings of the

parties or attorneys, no settlement negotiations, no mediation, no

court appearances, and no tri al. The facts were stipulated.

Nevertheless, appellants seek compensation for over 936 hours of

work. This includes such excessive entries 1 6 as (1) 24.3 hours for

the open records claim which Scham pleaded in his complaint but

never mentioned in his motion for summary judgment and apparently

abandoned; (2) 9.7 hours and the cost of an investigator for

service on the Texas Attorney General, who was not a party to the

suit and was not yet representing appellees, even though Tex. Civ.

Prac. & Rem. Code § 30.004 provides that notice upon the attorney

general requires only that “a copy of the petition shall be mailed

to the attorney general at the attorney general’s office in Austin,

Texas, by United States Postal Service certified mail, return

receipt r equested;” and (3) 2.5 hours on a one page joint motion

for Kallinen to proceed pro hac vice which was later withdrawn when

he was admitted to the district court.1 7 Alberti v. Klevenhagen

, 896 F.2d 927, 931 (5th Cir.), vacated

in part on other grounds , 903 F.2d 352 (5th Cir. 1990).

18 The only evidence submitted by Kallinen regarding his legal

experience or a reasonable hourly rate was a single affidavit by an

attorney with whom he had worked, averring that Kallinen’s work was

above average and merited $350 per hour.

1 9 In their application for fees to the district court,

appellants attempted to justify their steep hourly rate according

to the factors we articulated in Johnson v. Georgia Highway

Express, Inc.

, 488 F.2d 714 (5th Cir. 1974). These factors

include: (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 other employment by

the attorney resulting from acceptance of the case; (5) the

customary fee; (6) whether the fee is fixed or contingent; (7) time

limitations imposed by the cli ent 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 simi lar cases.

Id. at 717-19. In particular, appellants stress that this case was

highly undesirable, as it required Kallinen to sue twenty-two

8 Furthermore, although the relevant market for purposes of

determining the prevailing rate to be pai d in a fee award is the

community in which the district court sits, 1 7 appellant Kallinen

made no effort to show what his services are worth in Houston, and

in fact provided no res ume or other evidence of his experience. 1 8

The evidence submitted by appellees shows that the usual rate for

a solo practitioner with two years or less experience is $100

according to the State Bar of Texas 1995 Attorney Billing &

Compensation Survey Hourly Rate Report. Nevertheless, appellants

seek an award of $375 an hour, with an enhancement to $750 an hour,

for a lawsuit that was filed when c ounsel had only been licensed

one year. 19 This sum is so clearly excessive that it “shocks thesittin g judges in the jurisdiction where he practices law.

Appellants also point out that Kallinen was forced to turn down

other profitable employment to prosecute the c ase, and emphasize

their high level of success. Moreover, they assert that inasmuch

as many criminal defendants will now use attorneys they learn about

through direct mail solicitation instead of relying on courtappointed counsel, their suit saved the state of Texas millions of

dollars. On appeal, however, they raise none of these arguments,

but rather insist that the sole issue is whether they are entitled

to fees at all, not the quantum of those fees.

20 Landow , 999 F.2d at 98.

21 Von Clark , 916 F.2d at 258.

9 conscience” of the court.

We realize that the district court’s remedy here is extreme,

but we are reluctant to reverse inasmuch as doing so would serve to

condone and encourage such outrageous petitions. As the Fourth

Circuit has reasoned, appellants in this case

intended to submit an outrageously excessive fee petition

in the hope that the district court would at least award

some, preferably high, percentage of the requested fees.

We belie ve Congress did not intend to foster such

gamesmanship when it enacted the Civil Rights Attorney’s

Fees Act of 1976. Rather, the clear intent of Congress

was to provide reasonable fees to prevailing pa rties.

Our decision today seeks to further that purpose by

encouragi n g attorneys at the outset to request only

reasonable fees and to provide the necessary assistance

to the district court for determining a reasonable fee. 20

As such , we hold that the district court did not abuse its

discretion in denying attorneys’ fees und er the special

circumstances presented by this case. Nevertheless, we once again

caution district courts that “[t]o avoid the risk of remand the

district court should explain with a reasonable degree of

specificity the findings and reasons” 21 u pon which an award of10

attorneys’ fees —— or the denial of such an award —— is based.

III

CONCLUSION

For the foregoing reasons, we hold that the district court did

not abuse its discretion in denying attorneys’ fees and costs to

appellants. Accordingly, the judgment of the district court is, in

all respects,

AFFIRMED.