UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARC ALEXANDER; TIMOTHY CLARK;
GEORGE FRYE; ROBERT A. MOORE;
ANGELA MOORE; RICHARD SAXBERG;
JOSH DAVID REEDY,
Plaintiffs-Appellants,

v.

YVONNE TYLER, individually and in her
official capacity; M. H. ESTEPP,
                                           No. 98-1241
individually and in his capacity as Fire
Chief; PRINCE GEORGE'S COUNTY,
MARYLAND; MAUREEN HENNESSY,
individually and in her official
capacity; WILLIAM H. GODDARD,
individually and in his official
capacity,
Defendants-Appellees.

MARC ALEXANDER; TIMOTHY CLARK;
GEORGE FRYE; ROBERT A. MOORE;
ANGELA MOORE; RICHARD SAXBERG;
JOSH DAVID REEDY,
Plaintiffs-Appellees,

v.                                         No. 98-1321

YVONNE TYLER, individually and in her
official capacity; M. H. ESTEPP,
individually and in his capacity as Fire
Chief; PRINCE GEORGE'S COUNTY,
MARYLAND; MAUREEN HENNESSY,
individually and in her official
capacity; WILLIAM H. GODDARD,
individually and in his official
capacity,
Defendants-Appellants.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-93-2636-AW, CA-94-2090-AW)

Argued: March 3, 1999

Decided: May 14, 1999

Before WILKINSON, Chief Judge, and MICHAEL and
MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Daniel F. Goldstein, BROWN, GOLDSTEIN & LEVY,
L.L.P., Baltimore, Maryland, for Appellants. Henry Robbins Lord,
PIPER & MARBURY, L.L.P., Baltimore, Maryland, for Appellees.
ON BRIEF: Joseph B. Espo, BROWN, GOLDSTEIN & LEVY,
L.L.P., Baltimore, Maryland, for Appellants. Ann L. Lamdin, PIPER
& MARBURY, L.L.P., Baltimore, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

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OPINION

PER CURIAM:

Plaintiffs, seven applicants for firefighter positions in Prince
George's County, Maryland, brought a civil rights suit against county
officials alleging race and sex discrimination in hiring. After plaintiffs
were awarded certain relief, they applied to the district court for attor-
ney's fees under 42 U.S.C. § 1988(b). The court granted some but not
all of the requested fees. Both sides now appeal the fee award. Find-
ing no error, we affirm.

I.

Plaintiffs, who are white, filed their original§§ 1981 and 1983
complaint in September 1993, claiming that they were not hired by
the Prince George's County Fire Department because of their race or
sex. The complaint alleged that the Fire Department was able to
exclude plaintiffs from hire through a series of"dirty tricks," such as
permitting some minority applicants to retake qualifications tests and
altering the test scores of some applicants. For relief, plaintiffs
requested jobs with the Fire Department, permanent injunctive relief
against illegal hiring practices, and compensatory and punitive dam-
ages. About seven months later, after some discovery, plaintiffs filed
an amended complaint. They added an allegation that the Fire Depart-
ment hired applicants pursuant to an affirmative action plan targeted
at hiring a percentage of minorities and women in proportion to their
representation in the Prince George's County work force. In addition
to the relief requested in the original complaint, the amended com-
plaint asked for a declaration that the Fire Department's (or county's)
affirmative action hiring plan was illegal.

Ultimately, plaintiffs' "dirty tricks" allegations were not borne out,
and the district court granted summary judgment for defendants on
these allegations. The district court also upheld (in the summary judg-
ment for defendants) the Fire Department's affirmative action plan,
concluding that it was supported by a compelling interest and that it
was narrowly tailored. Plaintiffs appealed, and we reversed in part
and affirmed in part. We held, among other things, (1) that the depart-
ment's affirmative action plan was not narrowly tailored, (2) that fur-

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ther proceedings were necessary to determine whether plaintiff Josh
Reedy would have been hired but for the existence of the plan, and
(3) that the remaining plaintiffs were not denied employment with the
department because of their race or sex. See Alexander v. Estepp, 95
F.3d 312 (4th Cir. 1996). The case was therefore remanded.

On remand the district court granted summary judgment to plaintiff
Reedy as to liability, and thereafter defendants settled with him on
damages. The district court entered declaratory and injunctive relief
in favor of all plaintiffs, declaring the Fire Department's affirmative
action plan to be unconstitutional and enjoining the department from
hiring until new procedures (to be approved by the court) were in
place.

Section 1988(b) of Title 42 permits a successful§ 1983 (and
§ 1981) plaintiff to recover attorney's fees, and plaintiffs here moved
for fees of $266,158.76. The district court agreed that fees should be
allowed, but refused plaintiffs' proposed lodestar calculation (reason-
able hourly rate multiplied by hours worked) on the ground that plain-
tiffs had only partially succeeded (only one out of seven got monetary
damages, although all got injunctive relief). As a result, the court
awarded only $177,555.76. Both sides appeal the award.

II.

Section 1988(b) allows a district court to award attorney's fees to
a prevailing plaintiff in a civil rights action like this one. Plaintiffs,
of course, were awarded fees, but they argue that the district court
erred in cutting their request. Plaintiffs rely mainly on some general
language from the Supreme Court: if a plaintiff has"obtained excel-
lent results, his attorney should recover a fully compensatory fee."
Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). See also id. at 440
(a plaintiff who has a series of related claims and"has won substantial
relief should not have his attorney's fee reduced simply because . . .
the district court did not adopt each contention raised."). Plaintiffs
argue that they "obtained excellent results" in securing the injunction
and that even though the district court "did not adopt each contention
raised," they are entitled to a full fee award. In the end, however, it
boils down to whether the district court exercised sound discretion in
cutting the fee request.

                     4
We start with the statute:

           In any action or proceeding to enforce a provision of sec-
          tions 1981, 1981a, 1982, 1983, 1985, and 1986 of this title
          . . . 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.

42 U.S.C. § 1988(b). It is not seriously contested that plaintiffs are
"prevailing parties." To "prevail," a plaintiff must succeed on at least
one significant issue. See Hensley v. Eckerhart , 461 U.S. 424, 433
(1983) (parties are "`prevailing parties' for attorneys' fees purposes
if they succeed on any significant issue in litigation which achieves
some of the benefit the parties sought in bringing suit."); Farrar v.
Hobby, 506 U.S. 103, 111-12 (1992) (a party prevails "when actual
relief on the merits of his claim materially alters the legal relationship
between the parties by modifying the defendant's behavior in a way
that directly benefits the plaintiff."). Plaintiffs here prevailed under
this standard; they all obtained a declaration that the Fire Depart-
ment's affirmative action plan was unconstitutional and an injunction
prohibiting the department from hiring until new procedures were
adopted. In addition, one plaintiff received damages.

We turn, then, to a consideration of whether the district court prop-
erly exercised its discretion in setting (or cutting) the fee. The statu-
tory grant of authority to a district court is broad: "the court, in its
discretion may allow . . . a reasonable attorney's fee." 42 U.S.C.
§ 1988(b) (emphasis added). So long as a court exercises its discre-
tion, the statutory language permits it to award the full fee requested,
some part of it, or no fee at all. The statute is supplemented by case
law that describes how discretion is to be exercised in the determina-
tion of a reasonable fee. A court must "engag[e] in [a] measured exer-
cise of discretion," that is, it must consider the circumstances of the
case and state its reasons for awarding or denying a fee. Farrar, 506
U.S. at 114; see also Hensley, 461 U.S. at 437 (noting that attorney's
fee determination is committed to the discretion of the district court,
as long as it provides "a concise but clear explanation of its reasons
for the fee award.").

                     5
The Supreme Court has recognized twelve factors, sometimes cal-
led the Johnson factors, that bear on the determination of reasonable-
ness.* Although a district court is not required to recite each of the
twelve factors in its fee decision, see Farrar , 506 U.S. at 103, it is
especially important for the court to make clear that it has considered
the eighth factor, the level of the plaintiff's success, and explain how
the level of success (or the results obtained) relates to the fee
awarded, see Hensley, 461 U.S. at 440 (holding that "the extent of a
plaintiff's success is a critical factor in determining the proper amount
of an award of attorney's fees under 42 U.S.C. § 1988.").

The district court in this case considered the twelve Johnson factors
one by one and found that some of them "are applicable [and] some
aren't." The court concluded that several of the factors weighed in
favor of plaintiffs' attorneys: the time and labor required to litigate
the case (factor 1), the general skills plaintiffs' attorneys applied to
the case (factor 3), the experience, reputation, and ability of the attor-
neys (factor 9), and the good rapport between plaintiffs and their
attorneys (factor 11). The district court recognized, however, that fac-
tor 8 (the extent of the plaintiffs' success) "is the key factor." The
court said:

         I look at number eight to look at the success. I will certainly
         say that the case was vigorously pursued by both sides.
         There was some success on both sides. The county certainly
         lost the main claim, which would be the constitutionality of
_________________________________________________________________
*These factors, taken from Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717-19 (5th Cir. 1974), and listed by the Supreme Court
in Hensley, 461 U.S. at 430 n.3, 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 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
          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.

                     6
          the plan. The plan was struck down in violation of constitu-
          tional cases and the law that the Supreme Court has previ-
          ously announced. But by the same token, only individual
          relief could be obtained by one plaintiff, Mr. Reedy. The
          others, because of where they came on the test and on the
          list, they simply were not able to join in and share with any
          damages or reinstatement or personal injunctive relief. They
          did, of course, receive general injunctive relief against the
          enforcement of a plan that was unconstitutional and their
          general interest in seeing that the county play by the rules
          that they should have been.

           So there's some success, some [lack of] success, and I'm
          going to look at the proportionality of the degree of success
          and the fees generated to shove off some of the hours . . . .

The district court then examined the hours logged by each of plain-
tiffs' attorneys and reduced them to a number the court determined to
be "reasonably expended." This generated a total fee and expense
award of $177,555.76.

We conclude that the district court exercised an appropriate mea-
sure of discretion, and gave an adequate explanation, in deciding to
cut a certain number of hours included in the fee request submitted
by plaintiffs' attorneys. In particular, the court was careful to relate
the fees awarded to the degree of success. Contrary to plaintiffs' sug-
gestion, the district court did not reduce fees in proportion to the per-
centage of claims on which plaintiffs obtained a damage award.
Rather, the court simply recognized, as plaintiffs themselves do, that
they did not "achieve[ ] all of their goals" or obtain "all of the relief
they sought," Reply Brief at 12, and reduced fees to reflect this not
entirely successful result. Because the district court acted within its
discretion, we also reject defendants' argument on cross-appeal that
deeper cuts were required. We therefore affirm the district court's
order that set fees and expenses.

AFFIRMED

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