                           REVISED APRIL 12, 2002
                       UNITED STATES COURT OF APPEALS
                            For the Fifth Circuit



                                  No. 01-30816



                          SANDRA SPRAGIS FLOWERS,

                                                         Plaintiff-Appellant,


                                     VERSUS


            SOUTHERN REGIONAL PHYSICIAN SERVICES, INC.

                                                          Defendant-Appellee.




           Appeal from the United States District Court
               For the Middle District of Louisiana
                                 March 26, 2002


Before HIGGINBOTHAM, DeMOSS, and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

     Appellant    Sandra       Spragis   Flowers   won   a     jury   verdict   of

$100,000   in   damages    for    harassment     under   the    Americans   with

Disabilities     Act    from    Appellee   Southern      Regional     Physicians

Services, Inc. (“Southern”).         Southern appealed the damages award.

While the appeal was pending, Flowers filed a motion for attorney’s

fees, which was granted by the district court.               Subsequent to the

awarding of attorney’s fees, this Court vacated the damage award of
$100,000 and remanded so that nominal damages of $1.00 could be

awarded.    Southern then filed a motion for relief from judgment

pursuant to Federal Rules of Civil Procedure 60(b) so that they

would not have to pay attorney’s fees.     The district court granted

the motion and Flowers now appeals.



                              BACKGROUND

     Flowers commenced suit under the ADA, 42 U.S.C. § 12012,

against her former employer, Southern, alleging she was harassed

and fired because of her infection with HIV.       On December 8, 1998,

the matter went to trial and a jury awarded damages for the

harassment in the amount of $350,000, which was then reduced to

$100,000 due to limitations imposed by 42 U.S.C. § 1981a.1           On July

21, 1999,   the   district   court   entered   judgment   on   the   jury’s

verdict.2   On July 28, 1999, Flowers filed a motion for attorney’s

fees and costs in excess of $100,000, which Southern opposed.            On

December 6, 1999, Southern filed a notice of appeal to this Court

seeking review of the liability findings and damages awards by the



     1
          Apparently, the jury found for Flowers only on her
harassment claim but not on her claim that her termination was
motivated by her disability.
     2
          Both parties consented to trial by Magistrate on January
23, 1998.    The order referring to a Magistrate all further
proceedings and entry of judgment was entered on January 26, 1998
by Judge Frank J. Polozola. All references in this opinion to the
“district judge” or “district court” from the present case,
therefore, refer to Magistrate Judge Stephen C. Riedlinger.

                                     2
jury, but did not appeal the awarding of attorney’s fees because no

judgment on Flowers’ motion had been made yet.

     On February 14, 2000, the district court entered a judgment

for attorney’s fees in the amount of $52,561.25 plus interest and

costs.   On March 30, 2001, this Court affirmed the judgment of

Flowers’ case as to liability but vacated and remanded on the issue

of damages, instructing the district court to enter a judgment for

nominal damages of $1.00.         On April 12, 2001, Flowers filed a

motion for writ of execution seeking execution of the judgment of

February 14, 2000, for attorney’s fees.              On April 19, 2001,

Southern filed a motion for relief from judgment under Fed. R. Civ.

P. 60(b)(6).     On June 20, 2001, the district court granted the

motion for     relief   from   judgment   and   vacated   the   judgment   of

February 14, 2000, and denied the writ of execution.            In doing so,

the district court re-styled the motion as one brought under Fed.

R. Civ. P. 60(b)(5) instead of (b)(6).          Flowers now appeals from

this decision.



                                DISCUSSION

Did the district court err in granting the Rule 60(b) motion
despite Flowers’ continued standing as a prevailing party?

     In contesting the district court’s decision, Flowers puts

forward three arguments.        First, Flowers contends that the Rule

60(b) motion should be viewed as a Rule 60(b)(1) motion for

excusable neglect and that, as such, it should be denied for being

                                     3
untimely.    Second, Flowers contends that because this Court found

in favor of her as to liability (though not damages), she remains

the prevailing party.     As such, she asserts that Rule 60(b)(5)

cannot apply because this Court did not reverse or vacate the

liability portion of her judgment, which was the basis for awarding

attorney’s fees.    Finally, she argues that Rule 60(b)(6) also is

inapplicable because it should only be used in extraordinary

circumstances.

     Southern counters that Rule 60(b)(1) is inapplicable because

it was under no duty to appeal the awarding of attorney’s fees

before the appeal on the issue of damages and liability was

resolved.    It also asserts that Rule 60(b)(5) or (6) would be

proper.   It agrees with the district court’s use of (b)(5) because

the attorney’s fees were awarded based on the damages, not the

existence of liability, and now that the damages have been vacated,

that part of the verdict that was the basis of granting attorney’s

fees has disappeared.     Southern also asserts that equity would

allow the district court to use (b)(6) anyway.

     This Court reviews a district court’s decision to grant or

deny relief under Rule 60(b) for an abuse of discretion.    Halicki

v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir.

1998).    Rule 60(b) states, in relevant part:

             (b) Mistakes; Inadvertence; Excusable Neglect;
            Newly Discovered Evidence; Fraud, Etc. On motion
            and upon such terms as are just, the court may
            relieve a party or a party’s legal representative

                                  4
              from a final judgment, order, or proceeding for the
              following reasons: (1) mistake, inadvertence,
              surprise,   or   excusable   neglect;   (2)   newly
              discovered evidence which by due diligence could
              not have been discovered in time to move for a new
              trial under Rule 59(b); (3) fraud (whether
              heretofore denominated intrinsic or extrinsic),
              misrepresentation, or other misconduct of an
              adverse party; (4) the judgment is void; (5) the
              judgment   has   been   satisfied,   released,   or
              discharged, or a prior judgment upon which it is
              based has been reversed or otherwise vacated, or it
              is no longer equitable that the judgment should
              have prospective application; or (6) any other
              reason justifying relief from the operation of the
              judgment.    The motion shall be made within a
              reasonable time, and for reasons (1), (2), and (3)
              not more than one year after the judgment, order,
              or proceeding was entered or taken. A motion under
              this subdivision (b) does not affect the finality
              of a judgment or suspend its operation.

Fed. R. Civ. P. 60(b).       Flowers believes that Southern should have

appealed the awarding of attorney’s fees when granted and that the

failure to do so should be viewed as “excusable neglect” on the

part of Southern.       She asks, therefore, that their motion be re-

styled as one under Rule 60(b)(1).             Such motions must be made

within one year after the judgment, however, and so if Southern’s

motion   is    viewed   as   one   under   (b)(1),   then   it   is   untimely.

Southern does not dispute that a motion under Rule (b)(1) would be

untimely but points out that they are under no duty to appeal the

awarding of attorney’s fees and so (b)(1) does not apply.

     Though this Court has never before dealt with the issue of

whether an appeal of attorney’s fees is required in light of a Rule

60(b)(5) or (b)(6) motion, other circuits have. As Southern points



                                       5
out, both the Ninth and the Seventh Circuits have recognized that

a party must file a separate appeal only when it challenges some

aspect of the award itself.   California Med. Assoc. v. Shalala, 207

F.3d 575, 577 (9th Cir. 2000); Mother Goose Nursery Sch., Inc. v.

Sendak, 770 F.2d 668, 676 (7th Cir. 1985); see also Maul v.

Constan, 23 F.3d 143, 147 (7th Cir. 1994) (holding that it was an

abuse of discretion for the district court to deny a Rule 60(b)(5)

motion for relief when the merits judgment was reduced to nominal

damages on appeal); cf. Bailey v. Ryan Stevedoring Co., 894 F.2d

157, 160 (5th Cir. 1990) (noting that because no prior judgment

upon which attorney’s fees was based had been reversed or otherwise

vacated, Rule (b)(5) was inapplicable on its face).    In   Shalala,

the Ninth Circuit held that though a separate appeal must be made

to challenge some aspect of the fee award itself, “Rule 60(b)(5) is

available if a party seeks relief solely on the ground that the

underlying merits judgment is reversed.” Shalala, 207 F.3d at 577.

     Despite Rule 60(b)(5) appearing to be an appropriate motion in

such an instance, Flowers argues that it can not apply in the

present case because the underlying judgment was not reversed or

vacated. The damages were reduced to nominal but Flowers maintains

that because this Court did not reverse the liability aspect of the

jury’s decision, she is still entitled to attorney’s fees as a

prevailing party.   Flowers argument, however, has no basis in the

statute or in equity.   Rule 60(b)(5) provides that relief may be


                                  6
sought   when    “the   judgment    has      been   satisfied,   released,    or

discharged, or a prior judgment upon which it is based has been

reversed or otherwise vacated, or it is no longer equitable that

the judgment should have prospective application.” Fed. R. Civ. P.

60(b)(5) (emphasis added).          Rule 60(b)(5) states nothing about

relief being denied in favor of a prevailing party.                       As the

district court in the present case noted, a decision is “based on”

a prior judgment when it is “a necessary element of the decision,

giving rise, for example, to the cause of action or a successful

defense.”    Bailey, 894 F.2d at 160.         This Court’s opinion as to the

underlying proceeding states “we VACATE the jury’s damages award

and REMAND the case for the entry of an award of nominal damages.”

Flowers v. Southern Reg’l Physician Serv., Inc., 247 F.3d 229, 239

(5th Cir. 2001).

     The district court in the present case recognized that its

awarding of attorney’s fees was based on the amount awarded in

damages and not on the existence of liability alone.                     Awarding

attorney’s    fees   based   on    the    damages,    or   degree   of   success

obtained, is completely in line with the holdings of the Supreme

Court and this Circuit.       Farrar v. Hobby, 506 U.S. 103, 114-115

(1992); Giles v. General Elec. Co., 245 F.3d 474, 491 n.31 (5th

Cir. 2001).     In Farrar, the Supreme Court held that though a civil

rights plaintiff who recovers nominal damages is a “prevailing

party” for the purposes of the civil rights attorney fee provision,


                                         7
the nominal nature of the awards does affect the propriety of the

fees   awarded,   and   that    when   nominal    fees   are   awarded   it    is

appropriate for the prevailing party’s attorney to receive no fees

at all.     Farrar, 506 U.S. at 114-15.          “When a plaintiff recovers

only nominal damages because of his failure to prove an essential

element of his claim for monetary relief . . . the only reasonable

fee is usually no fee at all.”             Id. at 115 (internal citations

omitted).     In the present case, the district judge granted the

attorney’s fees in light of the damages, which were $100,000. This

Court vacated the awarding of $100,000 and remanded to the district

court to enter a judgment of nominal damages in the amount of

$1.00.    Therefore, that part of the judgment that formed the basis

of the granting of attorney’s fees was vacated and Rule 60(b)(5)

was appropriate.

       The Seventh Circuit faced a similar case in 1994 in Maul v.

Constan, 23 F.3d 143 (7th Cir. 1994).              In Maul, the plaintiff,

Maul, was an inmate in an Indiana prison who sued for violations of

his civil rights under 42 U.S.C. § 1983.             Id. at 144.     After an

award of damages and subsequent remand, the district court granted

Maul $22,500 in damages in June, 1991.            Id.    In August, 1991 the

district court granted Maul $18,542.93 in attorney’s fees.                    Id.

Over a year later, in December, 1992, the Seventh Circuit reversed

the district court’s award of $22,500 because Maul had failed to

prove actual injury.      Id.    The Seventh Circuit then remanded the


                                       8
case to the district court to assess $1.00 in nominal damages

against the defendants.    Id.    The award of attorney’s fees was not

part of that appeal.      Id.    In February, 1993, after the $1.00

judgment was entered, the defendants moved under Rule 60(b)(5) for

a refund of the attorney’s fees.        Id.    The district court denied

the motion and the defendants appealed.            Id. at 144-45.      The

Seventh Circuit reversed the district court’s decision, relying

heavily on the reasoning of Farrar to justify its conclusion that

no attorney’s fees should be awarded.         Id. at 145-47.    The present

case is distinguishable only in that this Court does not even have

to overcome the standard of review that acts in favor of the

district court’s decision as the court in Maul did.            The district

judge reviewed the Rule 60(b)(5) motion in light of this Court’s

vacating the damages and concluded that the motion was justified

and no abuse of discretion should be found.          We hold, therefore,

that Rule 60(b)(5) was appropriate in the present case.              Having

reached that conclusion, there is no need to delve into the issue

of whether Rule 60(b)(6) is also appropriate.



                                CONCLUSION

     Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the district court did not err in granting

Southern’s Rule 60(b) motion. Southern could not have appealed the

                                    9
awarding of attorney’s fees at the time that order was made and

Rule      60(b)(5)         is   perfectly   designed   to   accommodate   such   a

situation.             We therefore AFFIRM the district court’s decision.

                          AFFIRMED.




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