Revised January 8, 1999

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 97-30866

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PHYLLIS ROMAGUERA; ET AL,

 Plaintiffs, 

 

PHYLLIS ROMAGUERA,

 

 Plaintiff-Appellee,

VERSUS

 JON GEGENHEIMER,CLERK OF COURT, 24TH JUDICIAL DISTRICT

COURT, EX OFFICIO RECORDER OF MORTGAGES AND CONVEYANCES,

PARISH OF JEFFERSON, STATE OF LOUISIANA; ET AL,

 

 Defendants,

JON GEGENHEIMER, CLERK OF COURT, 24TH JUDICIAL DISTRICT

COURT, EX OFFICIO RECORDER OF MORTGAGES AND CONVEYANCES,

PARISH OF JEFFERSON, STATE OF LOUISIANA,

 Defendants-Appellants.

__________________________________________

 Appeal from the United States District Court 

for the Eastern District of Louisiana

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December 24, 1998

Before REYNALDO G. GARZA, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1991, Phyllis Romaguera and two other employees of the

Jefferson Parish Clerk’s Office (“plaintiffs”) brought suit under

42 U.S.C. § 1983 against the Governor of Louisiana and Jon
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Gegenheimer (“Gegenheimer”), in his official capacity as the

Jefferson Parish Clerk of Court. The plaintiffs sought to enjoin

the drug-testing policy at the clerk’s office and to have

Louisiana’s statute regulating public-sector drug testing

declared unconstitutional. The plaintiffs also requested

attorneys’ fees under 42 U.S.C. § 1988.

The plaintiffs filed a motion requesting that a temporary

restraining order (“TRO”) be issued and that the hearing on the

preliminary injunction be consolidated with the trial on the

merits for a permanent injunction. The district court granted

the motion.

After the consolidated hearing and trial, the district court

issued a permanent injunction enjoining the random drug-testing

of a major portion, but not all, of the employees at the clerk’s

office. The district court concluded that it was unnecessary to

reach the constitutionality of the Louisiana drug-testing

statute. The court also dismissed the Governor of Louisiana as a

defendant in the case. 

Gegenheimer appealed the district court’s judgment,

contending that the parties did not realize that the preliminaryinjunction hearing would be consolidated with the trial on the

merits for a permanent injunction. On appeal, this Court vacated

the district court’s judgment and remanded for a trial on the

merits. We concluded that the district court had modified its

prior consolidation order in open court by agreeing to limit the
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preceding to a preliminary-injunction hearing. On remand, two of

the plaintiffs were voluntarily dismissed, leaving Phyllis

Romaguera (“Romaguera”) as the sole plaintiff in the case.

After a trial on the merits, the district court entered

final judgment enjoining the random drug-testing of Romaguera and

declared that the random testing of specified groups of employees

at the clerk’s office was unconstitutional. The district court’s

judgment was entered on May 6, 1996. 

On May 16, 1996, Gegenheimer filed a motion for new trial,

which the district court denied on September 27, 1996. 

Gegenheimer then unsuccessfully sought leave to file an out-oftime appeal. 

On April 14, 1997, Romaguera filed a motion for attorneys’

fees. This filling occurred 343 days after the entry of final

judgment and 199 days after the denial of Gegenheimer’s motion

for new trial. Gegenheimer opposed Romaguera’s motion as

untimely under FED.R.CIV.P. (54)(d)(2). The district court

entered an order allowing Romaguera to proceed with her request

for attorneys’ fees. The district court subsequently awarded

Romaguera attorneys’ fees in the amount of $57,272.09. The

district court then amended its judgment on joint motion of the

parties so that it would accurately reflect a prior stipulation

between the parties regrading attorneys’ fees. The amended

judgment awarded Romaguera $54,165 in attorneys’ fees and

$3,272.09 in expenses. Gegenheimer appealed to this Court. 
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II. STANDARD OF REVIEW

There are two issues presented before this Court: (1)

whether Romaguera’s request for attorneys’ fees was barred by

FED.R.CIV.P. 54(d)(2); and (2) if it was not barred, whether the

district court’s award for attorneys’ fees was excessive.

Section 1988 grants district courts discretionary authority

to award reasonable attorneys’ fees to prevailing parties in

civil rights actions. See 42 U.S.C. § 1988(b). In resolving

whether the request for attorneys’ fees was timely we apply a de

novo standard of review because resolution of the issue turns to

a large extent on the district court’s interpretation of Rule

54(d)(2). See Bellaire Gen. Hosp. v. Blue Cross Blue Shield of

Mich., 97 F.3d 822, 827 (5th Cir. 1996)(reviewing de novo a

district court’s interpretation of the Federal Rules of Civil

Procedure). The appropriate standard of review for resolving the

second issue, whether the amount awarded for attorneys’ fees was

excessive, is reviewed for an abuse of discretion. Bell v.

Schexnayder, 36 F.3d 447, 449 (5th Cir. 1994). 

III. DISCUSSION

Rule 54(d)(2) provides, in pertinent part:

(A) Claims for attorneys’ fees and related

nontaxable expenses shall be made by motion unless the

substantive law governing the action provides for the

recovery of such fees as an element of damages to be

proved at trial.
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(B) Unless otherwise provided by statue or order

of the court, the motion must be filed and served no

later than 14 days after entry of judgment . . . .

Accordingly, to be entitled to attorneys’ fees, a party must

(1) request attorneys’ fees in its pleadings and (2) file a

timely motion for attorneys’ fees under Rule 54(d)(2) within

fourteen days after the entry of final judgment. United

Industries, Inc. v. Simon-Hartley, Ltd., 91 F.3d 762, 766 (5th

Cir. 1996). Unless modified by statute or court order, a party’s

failure to file a timely motion for attorneys’ fees under Rule

54(d)(2) serves as a waiver of the request. Id. 

A strict reading of Rule 54(d)(2) and this Court’s decision

in United Industries, Inc., would seem to indicate that Romaguera

waived her claim for attorneys’ fees by failing to file a motion

within fourteen days after the entry of final judgment. In

United Industries, the prevailing party failed to raise the issue

of attorneys’ fees during litigation and failed to file a motion

within fourteen days of entry of final judgment. Id. The issue

was raised nearly a year after the entry of final judgment and

this Court properly denied the party’s request because it was

untimely under Rule 54(d)(2). Id.

This Circuit has previously held that one of the key

functions of Rule 54(d)(2) is to ensure that parties properly

notify their counterparts of their requests for attorneys’ fees. 
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Id. at 766,(citing FED.R.CIV.P. 54 advisory committee’s note

(subdivision (d)). Rule 54(d)(2) sets out the minimum

requirements needed to effectuate a valid notice of the request. 

The failure to file the request would ordinarily result in a

request being denied. However, a court may deem a notification

sufficient if it satisfies the intended purposes of Rule

54(d)(2). Id.

In the case before us, the particular events that transpired

excused Romaguera from having to file a motion for attorneys’

fees. In its “Order and Reasons,” accompanying its 1992

judgment, the district court acknowledged Romaguera’s request by

stating: “The plaintiffs have requested attorneys’ fees under 42

U.S.C. § 1988. This shall be addressed at a separate hearing.” 

The district court’s 1992 judgment was subsequently vacated by

this Court. Then on remand, the district court entered judgment

in favor of Romaguera after holding a trial on the merits. In

its “Findings and Conclusions on Remand,” the district court

again stated: “The plaintiffs have requested attorney’s fees

under 42 U.S.C. § 1988. This shall be addressed at a separate

hearing.” 

We hold that the district court’s acknowledgment of

Romaguera’s request served to notify opposing counsel of the

request, thereby satisfying Congress’ intended purpose under Rule

54(d)(2). Had the court not addressed the issue, or refrained
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from giving the impression that a hearing would be scheduled by

the court, Romaguera would have been required to file the motion

under Rule 54(d)(2). As a consequence of the court’s

acknowledgment of the request, however, a filing was not needed

and the subsequent filing by Romaguera simply served as a

reminder to the court that it had failed to set a hearing date.

Gegenheimer’s second argument is that, if Romaguera did not

waive her claim for attorneys’ fees, the district court abused

its discretion in failing to reduce Romaguera’s fee award. 

Gegenheimer bases this upon (1) her unsuccessful defense of the

district court’s judgment during the interim appeal and (2) her

limited success in the case. In the district court, the parties

stipulated that the total fees and expenses of Romaguera’s

counsel for the entire course of the litigation amounted to

$57,437.09. Gegenheimer does not dispute that Romaguera is a

“prevailing party” under § 1988 or the reasonableness of the

hourly rate charged by Romaguera’s counsel. He merely contends

that Romaguera’s fee award should have been reduced based upon

the asserted grounds.

In awarding attorneys’ fees, the district court is required

to consider not only the product of the hours worked multiplied

by the billing rate, but also whether the plaintiff failed on

alternative claims and whether the award is excessive in light of

the plaintiff’s overall level of success. Hensley v. Eckerhart,
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461 U.S. 424, 434 (1983). When the plaintiff raises several

claims and those claims involve a common core of facts or related

legal theories, the district court need not attempt to divide

counsel’s hours among the claims. Instead, it should focus on

“the significance of the overall relief obtained by the plaintiff

in relation to the hours reasonably expended on the litigation.” 

Id. at 435. The most critical factor in determining a fee award

is the “degree of success obtained.” Id. at 436. While counsel

obtaining “excellent results” are entitled to a fully

compensatory fee, those with limited success may not be. Id.

Regarding Gegenheimer’s first assertion, that the plaintiff

should not be compensated attorneys’ fees for the interim appeal,

we hold that the appeal was strategically sound in light of the

confusion that occurred at the district court level concerning

the preliminary hearing. Gegenheimer’s second point, however,

presents a problem and must be addressed in more detail.

In their complaint, Romaguera and the other two plaintiffs

sought to enjoin Gegenheimer’s entire drug-testing policy. The

policy consisted of five categories of testing: (1) preemployment; (2) post-accident; (3) random; (4) reasonable

suspicion; and (5) return-to-duty. The plaintiffs also sought to

have Louisiana’s statute regulating public-sector drug testing

declared unconstitutional. Finally, the plaintiffs sought class

certification. 
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Romaguera dropped four of the five categories covered in the

policy, the constitutional issue was dismissed by the court and

Romaguera no longer sought class certification after the court’s

initial judgment was vacated. The level of success to

Romaguera’s claim was limited to the issue on random testing.

In determining the proper award for attorneys’ fees, a

district court must determine what is a reasonable expenditure in

light of the plaintiff’s success. Id. at 433. In this case, the

district court failed to discuss how the other points were

relevant to Romaguera’s random testing claim. We conceded that

random testing was the category most applicable to Romaguera. 

However, we fail to see the justification for awarding attorneys’

fees for the other claims. Therefore, we conclude that the

attorneys’ fees award constituted an abuse of discretion by the

district court. 

IV. CONCLUSION

Accordingly we AFFIRM the district court in its granting

Romaguera’s request for attorneys’ fees. We VACATE the amount of

attorneys’ fees awarded and REMAND this issue to the lower court,

instructing it to award attorneys’ fees consistent with this

opinion.