Monroe v. Houston Indep Sch Dist ( 2023 )

Case: 21-20642 Document: 00516631301 Page: 1 Date Filed: 02/01/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 1, 2023
No. 21-20642 Lyle W. Cayce
Clerk
Gerry Monroe,
Plaintiff—Appellee,
Versus
Houston Independent School District,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-1991
Before Stewart, Willett, and Oldham, Circuit Judges.
Per Curiam:*
In this civil rights suit, the district court rendered a final judgment
awarding attorney’s fees, court costs, and interest to a plaintiff that obtained
some, but not all, of the relief he sought against a school district. The school
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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district now appeals arguing that the district court erred in calculating the
lodestar and abused its discretion when it failed to adjust the lodestar to
account for the plaintiff’s limited success. Because we hold that the district
court did not err in calculating the lodestar or abuse its discretion in declining
to adjust the amount, we AFFIRM.
I. FACTUAL & PROCEDURAL BACKGROUND
Since approximately 2014, Gerry Monroe has served as a self-
appointed educational activist and advocate within the Houston Independent
School District (“HISD”) where he regularly attends monthly board
meetings. The events that took place during two of the HISD meetings that
Monroe attended in 2019 became the focus of the underlying proceedings in
this appeal. First, on April 9, 2019, Monroe attended a reassignment hearing
for an HISD employee. At that meeting, he shouted expletives, racial
epithets, pounded on the table, insulted the administrators, and stated that
he was going to turn the “m*****f***ing school upside down” and “knock
out three of [HISD’s] principals.” Two days later, on April 11, 2019, Monroe
attended an HISD board of trustees meeting wearing a grey cap, a bandana
covering his entire face except his eyes, and a t-shirt that displayed a large
photo of Fonville Middle School Principal Irma Sandate. The captions on the
shirt stated that Principal Sandate “must go” because she did not “like black
people.” When Monroe approached the podium, he spoke loudly and
angrily, describing an alleged incident where a teacher at Fonville Middle
School brought a gun to school in her purse. He then began shouting and
criticizing Principal Sandate for failing to sufficiently address the incident,
referring to her as an “idiot” and a “tyrant.” Towards the end of his speech,
Monroe yelled “Do something with that idiot over there. This is the
mandate: Either you take her out or I’m going to take her out.” He then made
a gesture with his hand that resembled a pointing gun. HISD peace officers
addressed Monroe as he was leaving the meeting pursuant to internal policy.
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In response to the incident, HISD’s Business Operations Officer
Eugene Salazar sent a letter to Monroe informing him that he was banned
from entering all HISD facilities, meetings, and activities and that his entry
onto HISD property would be considered trespass. The letter provided that
the ban was a “direct result” of Monroe’s conduct at the April 11 meeting
and also referenced his disruptive behavior at other HISD meetings.
On April 14, 2019, Monroe wrote a letter to HISD appealing the ban
and alleging that it violated his First Amendment rights. HISD did not
respond and on June 3, 2019, Monroe filed suit in federal district court
pursuant to 42 U.S.C. § 1983 alleging that HISD had violated his First and
Fourteenth Amendment rights by imposing the facilities ban against him. A
week later, Monroe moved for a preliminary injunction seeking to enjoin
HISD’s enforcement of the ban.
On June 12, 2019, HISD sent a second letter to Monroe reaffirming
the facilities ban previously issued and informing him that he could view the
HISD meetings online, allow a representative to speak on his behalf, and
engage with board members off HISD property. On July 10, HISD sent
Monroe a third letter that modified and reduced the term of the facilities ban.
The preliminary injunction hearing was then held on July 11 and on July 15,
HISD sent Monroe a fourth letter, overriding the third letter’s terms, that
shortened the duration of the original ban from one year or longer to one that
expired by its own terms on December 31, 2019. The letter further specified
that during the modified ban’s existence, Monroe would be permitted to
participate via telephone in any grievance or other administrative
proceedings in which he was involved and that he could request permission
to schedule an appointment for an in-person meeting. The letter ended by
outlining the conduct that HISD considered “inappropriate” for Monroe’s
future reference. Specifically, the letter provided in pertinent part:
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With respect to your conduct at any of the above activities
or at any other meetings or proceedings at HISD facilities or
campuses, please be advised that HISD considers that the
following conduct does not meet the standard for
“appropriate” conduct and also that the following conduct
disrupts and interferes with proceedings, as set out in
existing HISD policy, including but not limited to HISD
Policies BE(LOCAL) and GKA(LEGAL):
• Use of profanity;
• Personal verbal attacks on HISD personnel (e.g.,
name-calling);
• Making of threats (e.g., “take someone out” or
“knock someone out” or “turn a school upside
down”);
• Use of material to cover or obscure any part of your
face while addressing any HISD Board member or
employee;
• Wearing clothing containing offensive or derogatory
remarks about any HISD Board member or employee;
• Use of any signs, banners, posters, or similar visual
aids containing offensive or derogatory remarks about
any HISD Board member or employee;
• Use or display of any object that could cause serious
bodily injury (e.g., a noose);
• Loud or violent physical gestures such as slamming
hands on furniture;
• Threatening physical gestures such as a “finger
gun”; and
• Yelling, shouting, or screaming.
You are further advised that if you engage in conduct listed
above on HISD property, HISD is fully authorized under
existing policies, following a warning that is disregarded, to
have you removed immediately from HISD property
without further warning or advance notice. You are further
advised that if you engage in the above conduct on HISD
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property in the future, HISD may be required to issue
additional Criminal Trespass Warnings.
On July 19 the district court issued an order denying the preliminary
injunction motion on grounds that the July 15 letter containing the modified
ban struck an “appropriate balance between the right of schools to address
security concerns and control their premises and [Monroe’s] First
Amendment rights.”
After the district court denied Monroe the preliminary injunctive
relief he sought, he filed an interlocutory appeal with this court. See Monroe
v. Houston Indep. Sch. Dist., 794 F. App’x 381 (5th Cir. 2019). There, a panel
of this court noted that the issue before the district court at the time of the
preliminary injunction hearing was the facilities ban—not HISD’s policy. Id.
at 384. Consequently, the panel remanded the case for the district court to
determine in the first instance whether and to what extent Monroe had
adequately alleged a violation of HISD’s policy, or HISD’s clarification
thereof in the July 15 letter, and whether a preliminary injunction should
issue. Id. at 386.
After the proceedings were remanded to the district court, Monroe
filed an amended motion for a preliminary injunction. In his motion, he
sought to enjoin HISD from enforcing the facilities ban and the speech and
expression restrictions listed in the July 15 letter. On December 10, 2019, the
district court held a hearing and the following day, granted in part and denied
in part the motion. The district court first determined by a preponderance of
the evidence that Monroe “meant to communicate a serious expression of an
intent to commit an act of unlawful violence against Principal Irma Sandate”
during the April 11 HISD board meeting and that the limited facilities ban
was a reasonable response to Monroe’s threat.
The district court next addressed HISD’s speech policies for Monroe
as outlined in the July 15 letter. It reasoned that the First Amendment’s
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viewpoint neutrality principle protected Monroe’s right to express negative
views at the HISD meetings because it was permissible for Monroe or other
members of the public to express positive views at the meetings. Thus,
because HISD’s July 15 letter mandated positivity from Monroe, as opposed
to the negative speech and expression he desired to convey, it violated his
First Amendment right to free speech. Additionally, because the same
restrictions were not found in HISD’s policies, the July 15 letter improperly
established independent restrictions on Monroe’s speech and not the speech
of others. The district court then preliminarily enjoined HISD from
punishing Monroe by removing him from HISD facilities or issuing criminal
trespass warnings on the basis of his engaging in the prohibited speech and
expression listed in the July 15 letter.
On July 26, 2021, the district court held a bench trial on the sole
remaining issue of whether Monroe was entitled to have the terms of the
preliminary injunction issued as a permanent injunction. Shortly thereafter
on August 4, 2021, the district court issued a memorandum decision and
order vacating the preliminary injunction entered on December 11, 2019 and
dismissing Monroe’s claims as moot. In doing so, it reasoned that Monroe
had achieved his objective with HISD’s retraction of the unconstitutional
restrictions in the July 15 letter, and thus there was no remaining case or
controversy between the parties. The court then determined that the case
was moot because it was clear from the testimony of various HISD personnel
that “the allegedly wrongful behavior could not reasonably be expected to
recur.” The district court then opined that a reasonable attorney’s fee was
likely available in the case and took the matter under advisement.
On November 3, 2021, the district court rendered its order on the
attorney’s fee issue. It first determined that Monroe was a “prevailing party”
under 42 U.S.C. § 1988(b) because he had met the requirements under
Dearmore v. City of Garland, 519 F.3d 517, 524 (5th Cir. 2008). The district
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court then turned to its calculation of the fee award. After an extensive
analysis of Monroe’s legal team’s itemized billing records using the Johnson1
factors, the district court rendered a total award of $299,200.00, plus court
costs and interest.2 The court declined to increase the lodestar amount by
25% as Monroe’s counsel requested, reasoning that the fee award was
sufficient as calculated without the enhancement. HISD then appealed the
district court’s judgment issuing the attorney’s fee award.
II. STANDARD OF REVIEW
“A district court’s award of attorney[’s] fees is reviewed for abuse of
discretion.” Fessler v. Porcelana Corona De Mexico, S.A. DE C.V., 23 F.4th
408, 415 (5th Cir. 2022) (citing Torres v. SGE Mgmt., LLC, 945 F.3d 347, 352
(5th Cir. 2019)). “A district court abuses its discretion if it: (1) relies on
clearly erroneous factual findings; (2) relies on erroneous conclusions of law;
or (3) misapplies the law to the facts.” Id. (citing Combs v. City of Huntington,
829 F.3d 388, 391 (5th Cir. 2016) (citation omitted)).
III. DISCUSSION
On appeal, HISD argues that the district court erred in calculating the
lodestar because it awarded fees for all the time that Monroe’s attorneys
spent on the litigation, rather than just the time they spent on pursuing
successful claims. It also argues that the district court abused its discretion in
failing to adjust the lodestar to account for Monroe’s limited success since he
1
Johnson v. Ga. Hwy. Exp., Inc., 488 F.2d 714, 717-20 (5th Cir. 1974).
2
The award included: (1) $262,875.00 for Monroe’s lead counsel at a rate of
$500/hour for 525.75 hours; (2) $18,600.00 for Monroe’s second counsel at a rate of
$400/hour for 46.5 hours; and (3) $17,725.00 for Newar’s paralegal at a rate of $100/hour
for 177.25 hours.
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did not recover damages or obtain injunctive relief. We address each of these
arguments below.
A. Calculation of the Lodestar
“A prevailing litigant may not ordinarily collect an attorney’s fee from
the loser absent some statutory exception.” Combs, 829 F.3d at 391 (citation
omitted). A congressionally-created exception exists, however, in “Title VII
of the Civil Rights Act of 1964, which allows a district court to award
reasonable attorney’s fees to the prevailing party.” Id. (citing 42
U.S.C. § 2000e-5(k)). Courts apply a two-step method in this circuit for
determining a reasonable attorney’s fee award. Id. at 391–92 (citing Jimenez
v. Wood Cnty., 621 F.3d 372, 379 (5th Cir. 2010)). First, the court must
calculate the lodestar, “which is equal to the number of hours reasonably
expended multiplied by the prevailing hourly rate in the community for
similar work.” Id. at 392. In doing so, “[t]he court should exclude all time
that is excessive, duplicative, or inadequately documented.” Id. Second,
although the lodestar is presumed reasonable, a court may enhance or
decrease it based on the twelve Johnson factors.3 Id. “‘[T]he most critical
factor’ in determining a reasonable fee ‘is the degree of success obtained.’”
Fessler, 23 F.4th at 415 (citation omitted). “[T]he fee applicant bears the
burden of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.” Id. at 415–16 (citation
3
See Cruz v. Maverick Cnty., 957 F.3d 563, 574 n.3 (5th Cir. 2020) (quoting Johnson,
488 F.2d at 717–19) (“The Johnson factors are: (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 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.’” (internal quotation marks omitted)).
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omitted). However, once the fee is calculated, “the party seeking
modification of the lodestar under the Johnson factors bears the burden.” Id.
at 416 (citation omitted).
This court has held that “[i]t is axiomatic that work on an
unsuccessful claim cannot be deemed to have been expended in pursuit of the
ultimate result achieved . . . and therefore no fee may be awarded for services
on [an] unsuccessful claim.” Fessler, 23 F.4th at 416 (internal quotation
marks and citation omitted). When unsuccessful claims in the lawsuit are
unrelated to the successful claims, “the unsuccessful ones must be treated as
if they had been raised in separate lawsuits and excluded from the fee award.”
Id. (internal quotation marks and citation omitted). On the other hand,
“when claims . . . share a common core of facts or related legal theories, a fee
applicant may claim all hours reasonably necessary to litigate those issues.”
Id. (internal quotation marks and citation omitted).
As the district court acknowledged, the parties’ primary dispute with
respect to attorney’s fees arose over the application of two specific Johnson
factors: (1) the time and labor required, and (2) the customary fee. See 488
F.3d at 717–18. The district court stated that, consistent with the guidelines
set forth in Johnson, id. at 717–19, it had “made a detailed line-by-line review
of the contemporaneous time records” submitted by Monroe’s attorneys and
determined that, with their proposed reduction in hours, the attorney time
and labor spent on the case were reasonable and necessary to remedy HISD’s
infringement of Monroe’s First Amendment rights. We agree. Although it is
true that Monroe did not succeed at every turn in the lawsuit, he did
ultimately prevail on obtaining a preliminary injunction and he was able to
prove that HISD had violated his constitutional rights when it issued the July
15 letter attempting to restrict his speech and expression at the HISD
meetings. As the district court convincingly explained, the claims and steps
in litigation leading up to Monroe’s ultimate success shared both a “common
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core of facts” and “related legal” theories. Fessler, 23 F.4th at 416.
Consequently, the record supports the district court’s conclusion that the
time and labor Monroe’s attorneys spent on the case was reasonable. See Fox
v. Vice, 563 U.S. 826, 834 (2011) (“[W]e have made clear that plaintiffs may
receive fees under § 1988 even if they are not victorious on every claim. A
civil rights plaintiff who obtains meaningful relief has corrected a violation of
federal law and, in so doing, has vindicated Congress’s statutory
purposes.”).
The district court’s analysis of the Johnson customary fee factor is also
supported by the record. This court has acknowledged that a district court’s
selection of “an appropriate hourly rate” should be “based on prevailing
community standards for attorneys of similar experience in similar cases.”
Shipes v. Trinity Indus., 987 F.2d 311, 319 (5th Cir. 1993). The district court
engaged in such an analysis in this case, noting that both of Monroe’s
attorneys were well-credentialed Houston lawyers with decades of
experience litigating civil rights cases. The court also took into account other
Johnson factors that supported Monroe’s counsels’ proposed hourly rates
such as “the difficulty of litigating constitutional issues that evolved as HISD
shifted its position, the experience, reputation, and ability of [Monroe’s]
counsel, and the undesirability of taking on the civil rights case of a
community activist” like Monroe. This method of calculating the customary
fee comports with our precedent. As we have explained, “a ‘reasonable’ fee
is a fee that is sufficient to induce a capable attorney to undertake the
representation of a meritorious civil rights case” and “the lodestar method
yields a fee that is presumptively sufficient to achieve this objective.” Combs,
829 F.3d at 392–93. Moreover, “trial courts need not, and indeed should not,
become green-eyeshade accountants. The essential goal in shifting fees (to
either party) is to do rough justice, not to achieve auditing perfection.” Fox,
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563 U.S. at 838. The district court has achieved that goal in this case and thus
did not err in calculating the lodestar. See Combs, 829 F.3d at 391.
B. Adjustment of Lodestar
HISD argued at the district court, and continues to argue on appeal,
that the district court should have adjusted the lodestar to account for
Monroe’s limited success. The district court determined, however, that an
adjustment was unnecessary. We agree. Once the lodestar is calculated, the
court may “determine whether any other considerations counsel in favor of .
. . decreasing” it. Combs, 829 F.3d at 394–95. Here, the district court’s in-
depth analysis of the time records submitted by Monroe’s attorneys in the
context of the Johnson factors fully supports its lodestar calculation,
including its decision not to adjust, i.e., decrease, the lodestar. Accordingly,
we hold that the district court did not abuse its discretion in declining to
adjust the lodestar. Fessler, 23 F.4th at 415.
IV. CONCLUSION
We AFFIRM the district court’s attorney’s fee award in favor of
Monroe.
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