                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                               No. 10-2403


PROJECT VOTE/VOTING    FOR     AMERICA,   INCORPORATED;   JONATHAN
PEZOLD; SIERRA LETO,

                Plaintiffs - Appellants,

          v.

LISA L. DICKERSON, individually; GLENN M. LITSINGER; OFFICER
MORTON (Badge No. 050); RALIGN T. WELLS, in his official
capacity as Maryland Transit Administration Administrator
and Chief Executive Officer,

                Defendants - Appellees.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:07-cv-00092-RDB)

Submitted:   August 19, 2011                 Decided:   August 29, 2011

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Reversed and remanded by unpublished per curiam opinion.

Richard A. Simpson, Kimberly A. Ashmore, Katrina A. Skowron,
WILEY REIN, LLP, Washington, D.C.; Andrew D. Freeman, BROWN,
GOLDSTEIN & LEVY, LLP, Baltimore, Maryland; Deborah A. Jeon,
ACLU   FOUNDATION    OF   MARYLAND,   Baltimore,   Maryland,   for
Appellants.   Douglas F. Gansler, Attorney General of Maryland,
Steven     M.     Sullivan,     Assistant    Attorney     General,
Matthew J. Fader, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Plaintiffs Project Vote/Voting for America, Inc., Jonathan

Pezold     and    Sierra     Leto    appeal         from     a    district             court    order

denying    an    attorney’s       fees    award         in   their          18    U.S.C.       § 1983

action     against    Defendant       officials           for     the       Maryland       Transit

Administration       (“MTA”).         The      district          court       granted       summary

judgment in favor of Plaintiffs, awarding them nominal damages

of   one   dollar.         Nonetheless,        because           Plaintiffs            received      no

equitable    relief,        the   court     rejected         their          later       motion      for

attorney’s fees.           On appeal, Plaintiffs argue that because their

lawsuit successfully vindicated important First Amendment rights

and they received substantially all of their requested relief,

they were entitled to attorney’s fees.                           We agree, and therefore

reverse and remand the matter to the district court.



                                            I.

      This appeal arises out of a civil rights lawsuit brought by

Plaintiffs       against    the     MTA   on       January       11,    2007.           Plaintiffs

alleged that an MTA regulation, which had prevented Plaintiffs

from registering voters at MTA bus and train stations, violated

the First Amendment.              On March 27, 2007, the parties filed a

joint motion to place the case on the inactive docket pending

settlement       negotiations.            As        a      part        of        the    settlement

negotiations,        the    MTA   agreed       to       suspend        enforcement             of   the

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challenged       regulation       and    to       work     with    Plaintiffs         towards

developing new, replacement regulations.                         J.A. 29-30.         Based on

these representations, the district court closed the case.

      Later, dissatisfied with the newly drafted MTA regulations,

Plaintiffs moved to reopen the case on April 3, 2008.                                       The

district      court    granted      Plaintiffs’           motion,       and    the    parties

submitted opposing motions for summary judgment.

      On   August      28,    2008,     the    district        court     granted      summary

judgment    in    favor      of   Plaintiffs.            The   court     ruled       that   the

regulations were unconstitutional and awarded Plaintiffs nominal

damages of one dollar, the exact amount requested by Plaintiffs

in   the   complaint.         However,        the      court   found     that    neither      a

declaratory judgment nor an injunction was necessary “given the

binding     judicial         undertaking          by     the     defendants      that       the

regulations will not be enforced.”                     J.A. 107.

      After      the   parties      failed        to     agree     on    the    payment      of

attorney’s fees, Plaintiffs moved for fees pursuant to 18 U.S.C.

§ 1988.       Defendants opposed that motion.                      The district court

sided with the MTA, ruling that while Plaintiffs were in fact

the prevailing party, they were not entitled to attorney’s fees.

The court, relying on Farrar v. Hobby, 506 U.S. 103 (1992) and

Mercer v. Duke Univ., 401 F.3d 199 (4th Cir. 2005), held that,

because    Plaintiffs        received     only         nominal     damages,      “the       only



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reasonable fee is . . . no fee at all.”                      Farrar, 506 U.S. at

115.    We disagree with the reasoning of the district court.



                                         II.

       Section 1988 provides that, in its discretion, a court may

allow the prevailing party in a civil rights lawsuit to recover

reasonable attorney’s fees.              42 U.S.C. § 1988(b).                Generally,

“[a]   district       court’s   decision       to    grant       or   deny   attorney’s

fee[s] under section 1988 is reviewed for abuse of discretion.”

Mercer, 401 F.3d at 203.           A district court abuses its discretion

when it makes an “error of law,” Brodziak v. Runyon, 145 F.3d

194, 196 (4th Cir. 1998), or when it “rel[ies] on erroneous

factual    or    legal     premises,”     Mid       Atl.    Med.      Servs.,     LLC   v.

Sereboff, 407 F.3d 212, 221 (4th Cir. 2005) (internal quotation

marks omitted).

       Plaintiffs       were   undoubtedly      the    prevailing        party    below.

See Farrar, 506 U.S. at 112 (“[A] plaintiff who wins nominal

damages     is    a     prevailing      party       under    § 1988.”).             After

determining      that    Plaintiffs     are    the    prevailing         party,    courts

must then look to the “the degree of the plaintiff’s overall

success” in determining the reasonableness of a fee award.                              Id.

at   114   (quoting      Hensley   v.   Eckerhart,         461    U.S.    424   (1983)).

“When a plaintiff recovers only nominal damages because of his

failure to prove an essential element of his claim for monetary

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relief, the only reasonable fee is usually no fee at all.”                                    Id.

at 115.       However, in a concurrence, Justice O’Connor set out a

three-factor        test    to     “help    separate          the    usual    nominal-damage

case, which warrants no fee award, from the unusual case that

does    warrant     an     award    of     attorney’s         fees,”    which       this   Court

later adopted in Mercer, 401 F.3d at 204 (citing Farrar, 506

U.S. at 120-21 (O’Connor, J., concurring)).                             The Farrar-Mercer

test instructs us to consider: (1) the degree of the plaintiff’s

overall      success,      (2)     the   significance          of    the     legal    issue   on

which the plaintiff prevailed, and (3) the public purpose served

by   the     litigation.         Farrar,      506     U.S.      at    122    (O’Connor,       J.,

concurring); Mercer, 401 F.3d at 204.

       First, when evaluating a plaintiff’s overall success, we

must compare the form and extent of the relief sought to the

relief the plaintiff actually obtained.                              Mercer, 401 F.3d at

204.    This factor is particularly important where the plaintiff

seeks a large monetary award, but receives only nominal damages

-- as was the case in both Farrar and Mercer.                                See Farrar, 506

U.S.    at    114   (explaining          that       the   “district         court     . . .   is

obligated to give primary consideration to the amount of damages

awarded as compared to the amount sought” (internal quotation

marks      omitted)).        Likewise,        “[i]f       a    case    sought        injunctive

relief, the relevant comparison, of course, would be the scope



                                                5
of the injunctive relief sought to the relief actually granted.”

Mercer, 401 F.3d at 205.

       Here,     Plaintiffs          sought       an        injunction,         declaratory

judgment,      and    nominal      damages.        Plaintiffs        recovered      nominal

damages, but were denied equitable relief.                            Plaintiffs assert

that they obtained all the relief they sought from the outset

because the MTA changed its regulations in accordance with a

“binding       judicial      undertaking.”             The     MTA     argues    that        its

decision to change its regulations was entirely voluntary.

       The     district          court    ruled        in     favor      of      the     MTA.

Specifically, the court relied on the Supreme Court’s rejection

of the “catalyst theory” for determining whether a plaintiff is

a prevailing party for § 1988 purposes.                       See Buckhannon Board &

Care    Home,    Inc.       v.   West    Virginia      Dep’t     of     Health     &    Human

Services, 532 U.S. 598, 610 (2001).                    Under the catalyst theory,

several circuits had allowed plaintiffs to recover attorney’s

fees     if    they    could      demonstrate       that       their     lawsuit       was     a

“catalyst” for a defendant’s change in conduct –- regardless of

whether or not the plaintiff ever succeeded on the merits.                                   Id.

at 602.       The Supreme Court “ruled that the ‘catalyst theory’ is

not a permissible basis for the award of attorney’s fees.”                                   Id.

at     609-10.        The    district      court       found     that,     in    light        of

Buckhannon and Plaintiffs’ failure to get an injunction, the

first Farrar-Mercer factor weighed against Plaintiffs.

                                              6
      However, the district court’s reliance on Buckhannon was

misplaced.      First, Buckhannon resolved only the issue of whether

the catalyst theory was an appropriate means of determining if

the plaintiff was a prevailing party.                           532 U.S. at 600 (“The

question     presented         here        is   whether       th[e]       term        [‘prevailing

party’] includes a party that has failed to secure a judgment on

the    merits      or     a     court-ordered               consent       decree,           but    has

nonetheless     achieved         the       desired         result    because          the    lawsuit

brought about a voluntary change in the defendant’s conduct.                                        We

hold that it does not.”).                  Since no one disputes that Plaintiffs

were the prevailing party, the district court erred in relying

on    Buckhannon.             See     Benton          v.    Oregon       Student        Assistance

Commission, 421 F.3d 901, 907 (9th Cir. 2005) (“Buckhannon did

not   address      the        issue        of   the        factors       to     be     applied      in

determining the reasonableness of an attorney’s fee award to a

prevailing      party.”).             We    are       aware    that      the     Supreme          Court

rejected the catalyst theory in part because it did not wish

district     courts       to     undertake            cumbersome,         “highly        factbound

inquir[ies]”       into    the      “defendant’s            subjective          motivations,        in

changing     its    conduct,”              Buckhannon,        532        U.S.     at    609;        but

Justice O’Connor’s            concurrence         in       Farrar     and       our    own    Mercer

opinion    plainly       invite       district         courts       to    engage       in    a     more

robust inquiry to decide whether a prevailing party that wins

only nominal damages is entitled to any attorney’s fees.                                            See

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Farrar,     506    U.S.       at    574     (“Once         civil      rights      litigation

materially alters the legal relationship between the parties,

the   degree      of    the   plaintiff’s           overall      success     goes    to   the

reasonableness of a fee award[.]”).

      Further, whether or not Buckhannon is applicable here, the

district court erred when it ignored the actual basis for its

own decision to deny equitable relief at summary judgment.                                That

decision rested wholly on the reality that an injunction was

unnecessary       only    because         the    MTA      had    already    agreed     to    a

“binding judicial undertaking . . . that the regulations will

not   be     enforced.”             J.A.        107.        That      “binding      judicial

undertaking” was the joint motion, endorsed by the court, which

stated, “As a part of the settlement negotiations, the [MTA] has

agreed     that    it    will      take    appropriate          action     to   repeal    its

current     regulations.”            J.A.       29-31.          It   is   clear    from     the

language     of    the    joint      motion         and   the    court     order    granting

summary judgment that the parties had entered into a preliminary

settlement.        A plaintiff can be considered a prevailing party

“by virtue of having obtained an enforceable . . . settlement

giving some of the legal relief sought in a § 1983 action.”                                 S–1

and S–2 By and Through P–1 and P–2 v. State Board of Education

of North Carolina, 21 F.3d 49, 51 (4th Cir. 1994) (en banc)

(emphasis added); see also Buckhannon, 532 U.S. at 604 (“[W]e

have held that settlement agreements enforced through a consent

                                                8
decree may serve as the basis for an award of attorney’s fees.

Although a consent decree does not always include an admission

of liability by the defendant it nonetheless is a court-ordered

change in the legal relationship between the plaintiff and the

defendant.” (citations and internal alternations and quotations

omitted)).       That the settlement was only the beginning of the

parties’ development of a more thorough final agreement is of no

matter.        See   Hanrahan     v.    Hampton,    446    U.S.    754,   758   (1980)

(“Congress intended to permit the interim award of counsel fees

. . . when a party has prevailed on the merits of at least some

of his claims.”).           The district court’s decision not to award

injunctive relief was based on the fact that the parties had

already reached an agreement as to that aspect of the relief.

That decision did not turn on the court’s judgment as to the

merits    of   the    case.      Cf.    Farrar,    506    U.S.    at   115   (“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.” (emphasis

added)).

     Thus, the district court should have “credited” Plaintiffs

for bringing         the   MTA   into   a   settlement,      a    “binding    judicial

undertaking,” which afforded Plaintiffs most of the equitable

relief    sought      in   the   complaint.        The    first   factor     therefore

weighs in favor of Plaintiffs.

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       We     also       find     that       the    district      court        erred    in     its

application         of     the    second      Farrar-Mercer         factor.           The    court

incorrectly         held    that,       in    order     to    recover     fees,       the    issue

presented in the case must be “groundbreaking” or “novel.”                                    J.A.

180-81.       A claim need not be novel; instead, “[t]his factor is

concerned         with    the    general      legal      importance       of    the    issue    on

which       the    plaintiff       prevailed.”               Mercer,     401    F.3d    at     206

(emphasis added).                With this in mind, it is well-established

that our First Amendment right to speak freely in public forums

is a significant legal issue.                      See Goulart v. Meadows, 345 F.3d

239, 248 (4th Cir. 2003) (“[T]he traditional public forum, is a

place that ‘by long tradition or by government fiat ha[s] been

devoted to assembly and debate.’” (quoting Perry Education Ass’n

v.   Perry        Local    Educators’         Ass’n,      460     U.S.    37,    45    (1983)).

Additionally, Plaintiffs sought to open these public forums as a

means of promoting the right to vote, and we have consistently

held     that       voter        registration           restrictions       receive          strict

scrutiny because such restrictions affect a fundamental right.

See Greidinger v. Davis, 988 F.2d 1344, 1355 (4th Cir. 1993).

The second factor therefore also weighs in favor of awarding

attorney’s fees.

       Finally,          this    litigation        served     a   clear    public      purpose.

Unlike      the    plaintiff       in    Farrar,        Plaintiffs       never    sought       any

extravagant or personal financial benefit.                             Instead, Plaintiffs

                                                   10
wished only to vindicate our collective First Amendment rights.

See Shaw v. Hunt, 154 F.3d 161, 167 (4th Cir. 1998) (“[R]ecovery

under   § 1988     is   meant    to    reward    those    who    have     undertaken

successfully       to   fulfill       the    role   of    a     private     attorney

general.”).       While the settlement and receipt of nominal damages

did little for Plaintiffs personally, their victory undoubtedly

signaled     to   the   MTA     the    importance    of       ensuring    that   its

regulations do not intrude upon our most basic constitutional

and democratic rights.            See Lippoldt v. Cole, 468 F.3d 1204,

1224 (10th Cir. 2006) (holding that a fee award was justified

because the ruling against the defendants would encourage the

defendants to comply with the First Amendment going forward).

     The Supreme Court’s decision not to grant fees in Farrar

was born of its reluctance to reward attorneys for bringing less

than meritorious claims that seek, but fail to obtain, large

monetary judgments or fail to promote a larger public good.                      See

Farrar, 506 U.S. at 116 (O’Connor, J., concurring) (noting that

the plaintiff filed a lawsuit demanding 17 million dollars, but

“[a]fter 10 years of litigation and two trips to the Court of

Appeals, he got one dollar,” and that such a case is “simply not

the type of victory that merits an award of attorney’s fees.”).

Here, Plaintiffs successfully brought a meritorious civil rights

claim   to    prevent     the     enforcement       of    an     unconstitutional

government regulation in the public interest; this is the very

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form   of   litigation    Congress   wished      to   encourage   by   enacting

§ 1988.     See Daly v. Hill, 790 F.2d 1071, 1084 (4th Cir. 1986)

(“[Section]    1988      is   intended      to   encourage    [civil    rights

plaintiffs] to bring suit by shifting the costs of litigation to

defendants who have been found to be wrongdoers.”).                “Deterring

meritorious lawsuits on constitutional issues because they offer

a small likelihood of a significant money judgment presents as

grave a danger to our legal system as frivolous litigation.”

Koopman v. Water District No. 1 of Johnson, County, Kansas, 41

F.3d 1417, 1421 (10th Cir. 1994).            Accordingly, we must reverse

the district court.



                                     III.

       We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.                   For

the reasons stated above, we reverse and remand this matter to

the district court to determine reasonable attorney’s fees.



                                                       REVERSED AND REMANDED




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