                  IN THE UNITED STATES COURT OF APPEALS
                                                               United States Court of Appeals
                             FOR THE FIFTH CIRCUIT                      Fifth Circuit

                                                                    FILED
                                                                October 23, 2007
                                 No. 06-10123
                                                             Charles R. Fulbruge III
                                                                     Clerk

      KAREN JO BARROW,


                                                  Plaintiff-Appellee,
                                                  Cross Appellant,
            versus


      GREENVILLE INDEPENDENT SCHOOL DISTRICT; ET AL.,
                                                  Defendants,


      DR. HERMAN SMITH,
                                                  Defendant-Appellant,
                                                  Cross Appellee.




           Appeals from the United States District Court
                 for the Northern District of Texas
                             (00-CV-913)



Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:*

      In    the      third     appeal     resulting     from        this          case,

defendant–appellant      Dr.     Herman   Smith    (Smith)     challenges              the

district court’s judgment entered after a jury verdict in favor of


      *
       Pursuant to 5TH CIR. R. 47.5 the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
plaintiff–appellee Karen Jo Barrow (Barrow).                Smith presents three

arguments       against    the   judgment,     contending     that:     first,    the

district court erroneously applied a heightened level of scrutiny

in analyzing the constitutionality of the state action at issue in

this case; second, the district court erred in deciding to award

Barrow attorneys’ fees; and third, the district court erred when it

ruled       that   Smith’s   $30,000.00       joint   offer   of   judgment      with

codefendant Greenville Independent School District (GISD) and his

later $100,000.00 offer, both made pursuant to Federal Rule of

Civil Procedure 68, were ineffective to invoke Rule 68's provision

requiring certain offerees to pay post-offer costs.

       Barrow cross-appeals, arguing that the district court erred in

determining the prevailing market rate for Barrow’s attorneys and

in making downward adjustments to Barrow’s attorneys’ hours.

       For the reasons set forth below, we affirm.

                           FACTS AND PROCEEDINGS BELOW1

       During the summer of 1998, Barrow was employed as a teacher by

GISD, where Smith was then a superintendent.                   Barrow’s children

were       enrolled   in   the   Greenville     Christian     School,    a   private

religious school.

       That summer, an assistant principal position at a middle

school became open at GISD, and Barrow applied for the job.                   In May

       1
       We have previously chronicled the facts and proceedings of this case.
See Barrow v. Greenville Indep. Sch. Dist. (Barrow II), 480 F.3d 377, 379–80
(5th Cir. 2007), cert. denied, U.S. LEXIS 11047 (U.S. Oct. 1, 2007) (No. 07-
59).

                                          2
of 1998, at Smith’s direction, a senior school official approached

Barrow and asked whether she would move her children to the public

schools so that she could be considered for the assistant principal

position.   Barrow responded that she was very much interested in

becoming an assistant principal, but she would not remove her

children from their private religious school.

     After Barrow’s name was included in the applicant pool, Smith

directed the assistant superintendent for personnel to see if

Barrow would move her children to public school.    She would not,

and GISD hired another person for the assistant principal position.

Smith later told Barrow and her husband that he had not recommended

Barrow for the position because their children attended private

school.

     Barrow filed this suit in 2000 under 42 U.S.C. § 1983,

alleging that Smith violated her constitutional rights by refusing

to consider her for the assistant principal position because Barrow

would not move her children from the private Christian school into

a GISD school.

     Smith moved for summary judgment based on his assertion that

he was entitled to qualified immunity, permitting the court to

assume for the purpose of his motion that he decided not to promote

Barrow at least in part because she chose to educate her children

in a private school.   The district court granted Smith’s motion,

finding him entitled to qualified immunity after concluding that



                                 3
the   law    was   not   clearly   established    regarding   public   school

employees’ constitutional right to send their children to a private

school. We reversed the district court’s grant of summary judgment

to Smith in this case’s first appearance before this court.            Barrow

v. Greenville Indep. Sch. Dist. (Barrow I), 332 F.3d 844 (5th Cir.

2003).

      After this court decided Barrow I, the district court and

parties agreed to refer the case for non-binding arbitration

concerning the issue of attorneys’ fees.             On July 27, 2004, the

district court judge presiding over the non-binding arbitration

recommended that Barrow’s fee request be denied in its entirety or,

alternatively, drastically reduced.

      At    trial,   Barrow   asserted     two   claims   against   Smith:    a

religious rights claim and a parental rights claim.            On March 25,

2005, after a two-week trial, the jury reached its verdict.                  It

rejected Barrow’s religious rights claim, but found in her favor on

her parental rights claim.         The jury awarded Barrow $15,455.00 in

compensatory damages and $20,000.00 in punitive damages against

Smith.      Barrow lost all claims against GISD.

      Barrow and Smith both filed post-judgment motions, but the

district court denied all of these.              On December 20, 2005, the

district court awarded Barrow $631,293.00 in attorneys’ fees and

$22,775.22 in expenses and taxable court costs.

      Smith filed notice of appeal on January 12, 2006.                Barrow


                                       4
cross-appealed.

                                    DISCUSSION

                             I. Level of Scrutiny

       To withstand strict scrutiny, a state must show that its

challenged action “necessarily relate[s] to a compelling state

interest.”       Kite v. Marshall, 661 F.2d 1027, 1030 (5th Cir. 1981).

Conversely,       the    rational    basis     test   requires    only         that   the

challenged       state     action       “rationally     promote      a     legitimate

governmental objective.”            Id.    “A state action viewed under the

rational basis banner is presumed to be valid,” and the party

challenging the state action must show that it is completely

arbitrary.       Id.

       Smith argues on appeal that the district court erroneously

applied strict scrutiny when it should have used the rational basis

test to analyze Barrow’s parental rights claim.                  Specifically, he

argues that because the jury rejected Barrow’s religious rights

claim, there was no justification for applying a level of scrutiny

greater than rational basis.             Under the rational basis test, Smith

asserts, the district court should have entered judgment in his

favor.    We review constitutional questions de novo. United States

v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).

       In Barrow I, we disagreed with the district court’s conclusion

that the law on public school employees’ constitutional right to

send     their    children    to    a     private     school   was       not    clearly


                                           5
established, and reversed the district court’s judgment.   332 F.3d

at 846; see id. at 848 (stating that “the constitutional right of

public-school employees to select a private-school education for

their children was clearly established when Smith refused to

consider Barrow for the position of assistant principal”).       In

reaching our decision to reverse in Barrow I, we relied heavily on

two of this court’s previous opinions: Brantley v. Surles (Brantley

I), 718 F.2d 1354 (5th Cir. 1983), and     Fyfe v. Curlee, 902 F.2d

401 (5th Cir. 1990).    See Barrow I, 332 F.3d at 847–48 (discussing

Brantley I and Fyfe).

     In Brantley I, the plaintiff Brantley brought suit under 42

U.S.C. § 1983 against the superintendent of education and board of

education in Montgomery County, Mississippi, alleging that they

violated her constitutional rights to direct her child’s education

by firing her from her position as a public school cafeteria worker

“for the sole reason that her son attended a private academy rather

than the local public school.”    718 F.2d at 1355.   Unlike in the

present case, there was no suggestion that the plaintiff’s decision

to send her son to private school was based on religion; Brantley

had transferred her son from a public high school to a private,

segregated academy in hopes that he “would have a better chance of

playing varsity sports at the academy.”      Id. at 1355–56.   This

court deemed that the decision to transfer Brantley’s son to

private school fell under the umbrella of the Constitution’s


                                  6
guarantee of familial privacy, id. at 1359, but we recognized that,

“[i]n the realm of public school employment, the court must balance

the interests of the school employee with the interest of the state

in promoting efficiency in the educational services which it

provides through its school employees.”        Id.     The panel explained,

“The state may legitimately interfere with the constitutionally

protected conduct of a public school employee whenever that conduct

materially and substantially impedes the operation or effectiveness

of the educational program.”        Id.   Accordingly, the judgment was

reversed and the case remanded to the district court to determine,

first,   whether   Brantley’s   son’s     enrollment    in   private   school

“materially and substantially interfered with the operation or

effectiveness of the educational program” at Brantley’s school.

Id.   The panel directed the district court to also determine

“whether the protected activity played a substantial part in the

board’s discharge decision,” and that if it did, whether Brantley

“would have been fired anyway for reasons completely independent of

the private school enrollment decision.”         Id.

      Brantley’s case appeared before this court again in Brantley

v. Surles (Brantley II), 765 F.2d 478, 479 (5th Cir. 1985) (per

curiam),   after   the   district   court   determined       on   remand   that

Brantley was fired from her job for nondiscriminatory reasons.               We

reversed and remanded again after concluding that the ostensible

reason for Brantley’s discharge—a disrespectful remark made about


                                     7
a board of education member—could not have been the basis for her

discharge.    Id. at 481–82.   But we agreed with the district court’s

determinations that the private school education of Brantley’s son

played a substantial part in the board’s decision to fire Brantley,

and that there was “no evidence that the enrollment of Brantley’s

son in the private school materially and substantially interfered

with the operation or effectiveness of the educational program at

the public school.”      Id. at 480.      The local superintendent of

education had testified that interracial dissension might occur

after Brantley’s son withdrew to enroll in a private, segregated

school, but the superintendent’s belief was unsupported “by any

objective evidence.”     Id.

     In Fyfe v. Curlee, the plaintiff Fyfe was a secretary to a

public elementary school principal when she enrolled her daughter

in a private, all-white academy.          902 F.2d at 402.      Like the

plaintiff in the Brantley cases, Fyfe’s reasons for selecting a

private education for her child were unrelated to religion; she and

her husband were concerned about her daughter’s experiences with

another white child at the public school and thought that her

daughter would be happier at the private academy.        Id.   Around the

time of Fyfe’s decision to enroll her daughter in private school,

black citizens began boycotting local businesses, primarily “to put

pressure on the school system to increase the number of black

teachers     and   administrators.”       Id.      The    local   school


                                      8
superintendent encouraged Fyfe to resign.           Id.   When Fyfe refused,

he transferred her to a newly created, undesirable job.              Id. at

402–03.    Fyfe filed suit under section 1983, alleging retaliation

against her for exercising her constitutional right to enroll her

daughter in private school.           Id. at 402.     This court concluded

that, by transferring her to a menial position, the school district

had violated Fyfe’s First and Fourteenth Amendment rights.            Id. at

405.    The question then became whether the record revealed that

Fyfe’s “protected conduct of enrolling her child in a private

school was detrimental to the effecient operation of the [] school

system.”    Id.   We made clear that this analysis—which requires

balancing the interest of the school employee with that of the

state in promoting efficiency in educational services—“is to be

conducted by the court as a matter of law, not fact,” id., and that

the defendant state shoulders the burden to show that the child’s

enrollment in private school harms the public school system.              See

id. at 406 (because defendant had failed to demonstrate that its

interference with the plaintiff’s parental rights was necessary for

the efficient operation of the school system, plaintiff prevailed

as a matter of law).       We concluded that the state had “failed to

demonstrate that its action in reassigning Mrs. Fyfe was necessary

to the smooth and efficient operation of the school system.”              Id.

at 406.    We explained:

       “[T]he   school     district     produced    no    evidence   of


                                       9
     substantial interference with its effectiveness as a
     result of Mrs. Fyfe’s enrollment of her daughter in
     private school . . . . The record is completely silent
     on any effect Shannon Fyfe’s move to the private school
     had on the appellee school district. This court held in
     the second appeal in Brantley that belief alone of such
     interference ‘unsupported by any objective evidence’ is
     not sufficient to demonstrate material interference to
     carry the balancing test for the school district.
     Brantley v. Surles, 765 F.2d 478, 480 (5th Cir. 1985).”
     Id. at 405.

Our analysis was unchanged by the fact that a boycott of local

businesses had been threatened in case a public school employee

enrolled his or her child in a private, segregated school.   There

was no evidence that this possibility of a boycott was related to

Fyfe, or that it impeded the school system’s operation:

     “No causal link was ever made in the district court
     between the threatened school boycott and Mrs. Fyfe’s
     action. When asked on cross-examination whether she was
     aware that one of the demands of the boycotting group was
     ‘that the school system not employ anybody who does now
     or ever has had a child in a private segregated academy,’
     the plaintiff responded that she had read about that in
     the paper. The mere fact that this demand was made on
     the school system however cannot be sufficient to
     demonstrate that Mrs. Fyfe’s enrollment of her daughter
     at a private school caused substantial and material
     interference with the school system’s operation and
     effectiveness.” Id. at 405.

     When the instant case first appeared before a panel of this

court in Barrow I, we relied on the Brantley and Fyfe cases for

certain principles.   For example, we stated in Barrow I that those

cases clarified that “public-school employees like Barrow have a

protected right to educate their children in private school,” 332

F.3d at 848, and that this public school employee right was clearly


                                 10
established when Smith refused to consider Barrow for the assistant

principal position.       Id.    Most important to the instant appeal, in

Barrow I, we relied on the Brantley and Fyfe cases in declaring

that a “state cannot take an adverse employment action against a

public-school employee for exercising this right [to educate his or

her   child   in   private      school]    unless     it    can   prove    that   the

employee’s selection of private school materially and substantially

affects the state’s educational mission.”                  Id.

      Because we had unequivocally declared in Barrow I the state’s

burden to show Barrow’s enrollment of her children in private

school caused detriment to its educational mission, we found it

unnecessary to address in the opinion from that appeal the question

of the degree of scrutiny to be applied to a state’s adverse action

against a public school employee for sending his or her child to a

private school.     Id. at 849 n.20.           We found it to be an unnecessary

analysis because, regardless of the level of scrutiny applied, it

was   still   incumbent    on    the   defendant      to     show   that   Barrow’s

selection of school for her children had an injurious effect on the

operations of the public school system that employed her.                    If the

defendant failed to meet that burden, its defense would be a

nonstarter.    We explained:

      “[W]e express no opinion on the particular degree of
      scrutiny a state action must undergo to withstand a
      challenge to its constitutionality in a case like this
      one. Instead, we simply recognize that the state cannot
      strip its school employees of the right to choose a
      private-school education for their children without

                                          11
     proving that the unfettered exercise of this right will
     undermine a state interest.     Barrow and amici curiae
     argue that any state action that interferes with this
     right is subject to strict scrutiny. We need not take up
     this question today. In the absence of objective proof
     that Barrow’s choice of a private-school education for
     her children will undermine a state interest the
     district’s patronage policy fails irrespective of the
     degree of scrutiny applied.” Id. (emphasis added).2

Having found that Barrow asserted a constitutionally protected

right, and that Smith interfered with that right, Barrow would

prevail if the defendants did not show that the interference was

required for the smooth and efficient operations of the school

system.    This was the effect of our reliance in Barrow I on

Brantley and Fyfe.

     Smith argues that requiring defendants in a case with facts

such as these to show that the public school employee’s choice of

a private school education for their children impeded with the

public school system’s operations constitutes strict scrutiny of

the defendant school board’s actions. Smith asserts that Barrow is

not entitled     to   this   degree   of   scrutiny   without   a   religious

component to her claim, and Smith contends that any possibility of

such a religious component was eradicated when the jury found that

Barrow’s religious rights were not violated.


     2
       We likewise made clear in Barrow I that we did not need to decide
whether the right asserted by the plaintiff fell under the First Amendment or
the Due Process Clause of the Fourteenth Amendment because, regardless, the
defendant had the burden of showing that the enrollment of Barrow’s children
in private school impeded school operations. See 332 F.3d at 846–47
(considering together three claims asserted by Barrow because “at bottom all
aver that Barrow, a public-school employee, has a constitutionally-protected
right to select a private-school education for her children”).

                                      12
     One might argue that because the jury found that religious

rights were not violated, there is no religious component in this

case.    In this case’s second appearance before this court, Barrow

v. Greenville Independent School District (Barrow II), 480 F.3d 377

(5th Cir. 2007), cert. denied, U.S. LEXIS 11047 (U.S. Oct. 1, 2007)

(No. 07-59), Barrow unsuccessfully challenged the district court’s

grants of summary judgment in favor of GISD.      480 F.3d at 380.

While the Barrow II opinion largely focuses on Barrow’s argument

that Smith was a policymaker and that therefore GISD was liable for

his unconstitutional conduct, see id. at 380–82, we also addressed

Barrow’s contention that the district court improperly granted

summary judgment in favor of GISD on her religious discrimination

claim.   See id. at 382–83.   We agreed with the district court that

Barrow had not produced sufficient evidence to show that GISD’s

employment practices result in a significant disparity between

those who are religious and those who are not.      Id. at 383.   We

stated further:

     “The record evidence, read in the light most favorable to
     Barrow, supports the district court’s conclusion that
     Smith did not recommend Barrow because her children were
     not attending the public schools, not because her
     children were attending a religious school. There is no
     probative evidence that Smith’s decision had any impact
     upon any First Amendment-protected freedom.” Id.

     Assuming, then, that Barrow II removes the possibility of a

religious element to Barrow’s claims, Smith relies on several cases

for the proposition that the appropriate level of scrutiny to be


                                  13
applied to state actions interfering with parental rights—where

there is no religious element—is rational basis.           In particular,

Smith cites the United States Supreme Court’s decision in Wisconsin

v. Yoder, 92 S.Ct. 1526 (1972), and two previous opinions of this

court: Kite v. Marshall, 661 F.2d 1027 (5th Cir. 1981), and

Littlefield v. Forney Independent School District, 268 F.3d 275

(5th Cir. 2001).

     In Kite v. Marshall, a case decided before the Brantley cases

and Fyfe v. Curlee, plaintiffs challenged a regulation requiring

that any high school student who attended certain summer sports

training camps be suspended temporarily from varsity athletic

eligibility.    661 F.2d at 1028.        Various reasons supported the

rule: “the need to control over-zealous coaches, parents and

communities, the achieving of a competitive balance between those

who can afford to attend summer camp and those who cannot, the

avoidance of various excessive pressures on students, and the

abrogation of the use of camps as recruiting mechanisms.”             Id. at

1030.   The district court declared the rule unconstitutional, but

this court reversed, finding that it did not violate either the due

process   clause   or   equal   protection   clause   of   the    Fourteenth

Amendment.     Id. at 1028. We determined that the rule did not

implicate any fundamental constitutional right, and that therefore

the appropriate level of scrutiny was rational basis.            Id. at 1029,

1030.


                                    14
       In    Littlefield   v.   Forney     Independent     School     District,

individual students and parents of students challenged a district-

wide mandatory uniform policy. 268 F.3d at 279. Specifically, the

parents contended that the compulsory uniform policy violated their

constitutional right to control their children’s education in

violation of the Fourteenth Amendment.            Id. at 282.       The parents

argued that their right to control their children’s education was

a fundamental right and that therefore the court should apply

strict scrutiny in analyzing the school uniform policy.                 Id. at

288.       We disagreed, declining to find a “fundamental right for

parents to control the clothing their children wear to public

schools.”3       Id. at 289.    We analyzed the asserted parental right

under a rational-basis standard.           Id.

       While both Kite and Littlefield employ a rational basis

standard to analyze state interference with parental rights, those

cases      are   distinguishable   from    the   instant   case.      Kite   and

Littlefield address policies relating to what goes on at the public

school: ineligibility to participate in school varsity athletics if

certain types of summer sport camps are attended, and a district-

wide compulsory school uniform policy.               The defendant Smith’s



       3
        We explained:
       “While Parents may have a fundamental right in the upbringing and
       education of their children, this right does not cover the
       Parents’ objection to a public school Uniform Policy. It has long
       been recognized that parental rights are not absolute in the
       public school context and can be subject to reasonable
       regulation.” 268 F.3d at 291.

                                      15
stance toward Barrow’s decision to educate her children in private

school does not in any way relate to what occurs at a GISD-operated

public school.   Stated differently, a rule requiring public school

employees to enroll their children in public schools is simply more

invasive of parental rights and less clearly tied to the public

school’s management of its students and educational program than

the Kite and Littlefield rules addressing school varsity athletics

eligibility   and    school      uniforms.             Kite   and     Littlefield    are

distinguishable, and they are not controlling in this case.

     Nevertheless, we acknowledge that it is possible to argue that

without a situation akin to that in Wisconsin v. Yoder, 92 S.Ct.

1526, only rational basis—and not strict scrutiny—should be applied

in evaluating a state action that imposes requirements on parental

decisions regarding education.                   In Yoder, respondents had been

charged, tried, and convicted of violating the State of Wisconsin’s

compulsory school-attendance law that required parents to send

their children      to    attend      public      or   private      school   until   the

children reached         16   years    of   age.        92    S.Ct.   at   1529.     The

respondents, two members of the Old Order Amish religion and one

member of the Conservative Amish Mennonite Church, had declined to

send their 14 and 15 year-old children to public school after they

completed the eighth grade, and the children were not enrolled in

any private school, nor did they meet any applicable exception to

the Wisconsin statute.             Id.      The United States Supreme Court



                                            16
stated:

     “[I]n order for Wisconsin to compel school attendance
     beyond the eighth grade against a claim that such
     attendance interferes with the practice of a legitimate
     religious belief, it must appear either that the State
     does not deny the free exercise of religious belief by
     its requirement, or that there is a state interest of
     sufficient magnitude to override the interest claiming
     protection under the Free Exercise Clause.” Id. at 1532.

The Court found that, in the respondents’ case, enforcement of the

compulsory school-attendance law after the eighth grade “would

gravely endanger if not destroy the free exercise of respondents’

religious beliefs,” and the focus of its analysis thus turned to

whether   the    state   interest   was   sufficient   to   override   the

respondents’ religious-based interest in declining to send their

children to public school after the eighth grade.           Id. at 1535.

The Court made clear its analysis was more rigorous than the

rational-basis test:        “[W]hen the interests of parenthood are

combined with a free exercise claim of the nature revealed by this

record, more than merely a ‘reasonable relation to some purpose

within the competency of the State’ is required to sustain the

validity of the State’s requirement under the First Amendment.”

Id. at 1542.     The Court concluded that the State of Wisconsin was

precluded from forcing the respondents to send their children to

formal school until the age of 16 by the First and Fourteenth

Amendments.     Id.   Thus, Yoder arguably supports Smith’s contention

that heightened scrutiny is appropriate only where the state action

also adversely affects free exercise of religion, which the jury


                                    17
verdict in this case makes clear is no longer at issue.

      Even if we agree with Smith, however, that Yoder represents

the only possible basis for a heightened level of scrutiny in cases

dealing with state interference of parental rights, it remains the

school district’s burden to show that Barrow’s decision to send her

children to private school had a materially adverse effect on the

public school district.    This is so because Barrow I renders that

the law of the case.

      Under the law of the case doctrine, “[o]nce a panel of this

court has decided an issue of law or fact, the decision continues

to govern all subsequent stages of the same case.”   Free v. Abbott

Labs., Inc., 164 F.3d 270, 272 (5th Cir. 1999).   This holds true to

explicitly decided issues as well as “everything decided ‘by

necessary implication.’” In re Felt, 255 F.3d 220, 225 (5th Cir.

2001) (quoting Browning v. Navarro, 887 F.2d 553, 556 (5th Cir.

1989)).   The law of the case doctrine is “necessary to bring

finality to litigation.”    Free, 164 F.3d at 272.   Application of

the   doctrine   is    discretionary,   but   barring   exceptional

circumstances this court will generally decline to revisit an issue

previously decided by another panel in the same case.      Id.; see

also United States v. Slanina, 359 F.3d 356, 358 (5th Cir. 2004)

(per curiam) (noting that this court follows its prior decisions

without re-examination unless, for example, the earlier decision

was “dead wrong”).     There are no such exceptional circumstances


                                 18
warranting our reconsideration of the panel’s decision in Barrow I.

      It is true that at the time of Barrow I we were faced with a

summary judgment motion and therefore had to give Barrow the

benefit        of    the    doubt    on   her    religious     rights   claim,     while

subsequently the jury verdict and Barrow II took that claim out of

consideration.         However, it remains the law of the case that Barrow

I   relied      on    the    Brantley     and    Fyfe     cases,   which—as   we   noted

above—did not have a religious element, and Barrow I expressly held

that the requirements of those cases obtained regardless of the

level     of    scrutiny      and    regardless      of    whether   First    Amendment

religious rights or merely more general due process parental rights

were involved.             We held in Barrow I that those Brantley and Fyfe

opinions were controlling, and the law of the case requires that we

adhere to that prior holding herein.

                                    II. Attorneys’ Fees

      Smith faults the district court for acting against the non-

binding arbitration recommendation and awarding Barrow attorneys’

fees under 42 U.S.C. § 1988.4                   Barrow, meanwhile, cross-appeals,

contending that the district court’s award of attorneys’ fees was



      4
       Subsection (b) of 42 U.S.C. § 1988, “Proceedings in vindication of
civil rights,” provides that in actions to enforce section 1983, a court “may
allow the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs . . . .”
      “Section 1988 ‘is a tool that ensures the vindication of important
rights, even when large sums of money are not at stake, by making attorney’s
fees available under a private attorney general theory.’” Hopwood v. Texas,
236 F.3d 256, 278 (5th Cir. 2000) (quoting Farrar v. Hobby, 113 S.Ct. 566, 578
(1992) (O’Connor, J., concurring)).

                                                19
the result of improper reduction.            We disagree with both parties

and affirm the district court’s award of fees.

      As we have previously stated, “We cannot overemphasize the

concept that a district court has broad discretion in determining

the amount of a fee award.”          Associated Builders & Contractors of

Louisiana, Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374, 379 (5th

Cir. 1990).   While we review the award of attorneys’ fees for abuse

of discretion, “[u]nderlying questions of fact are reviewed for

clear error.”    Adams v. Unione Mediterranea di Sicurta, 364 F.3d

646, 656 (5th Cir. 2004).             Such subsidiary factual questions

include determinations of “whether the reported hourly rate is

reasonable and whether the reported tasks are duplicative or

unrelated to the purposes of the law suit.”            Associated Builders &

Contractors of Louisiana, Inc., 919 F.2d at 379.               The breadth of

discretion accorded to the district court in awarding attorneys’

fees is appropriate given that “[a]ppellate courts have only a

limited opportunity to appreciate the complexity of trying any

given case and the level of professional skill needed to prosecute

it.” Hopwood v. Texas, 236 F.3d 256, 277 (5th Cir. 2000); see also

Associated Builders & Contractors of Louisiana, Inc., 919 F.2d at

379   (stating   that   the    district      court’s   broad   discretion   is

“‘appropriate    in     view    of     the    district    court’s    superior

understanding of the litigation and the desirability of avoiding

frequent appellate review of what essentially are factual matters’”


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(quoting Hensley v. Eckerhart, 103 S.Ct. 1933, 1941 (1983))).

       The district court thoroughly evaluated and considered the

propriety of the attorneys’ fees award.              In its memorandum opinion

and order dated December 20, 2005, the district court discussed for

over fifty pages its reasons for the attorneys’ fees award.                    Given

the     district       court’s     impressively       careful        and    thorough

consideration of this issue, we cannot conclude that the court

abused its discretion.           Cf. Associated Builders & Contractors of

Louisiana, Inc., 919 F.2d at 379 (declaring the abuse of discretion

standard possible only where the district court has provided a

concise and clear explanation for its award of fees).

                          III.     Offers of Judgment

       Lastly, Smith also contends that the district court erred when

it ruled that his Rule 68 offers of judgment were ineffective.                      At

issue are two offers of judgment: one made jointly by codefendants

Smith    and    GISD    for   $30,000.00,      and   one   by    Smith      only   for

$100,000.00.        Smith argues that in regards to the $30,000.00 joint

offer, the district court should have compared the offer to the

recovery Barrow obtained against both Smith and GISD, which Smith

argues would make the offer amount greater than Barrow’s recovery

because       the    amount      Barrow   was    ordered        to    pay    GISD—or

$14,492.65—should be subtracted from her recovery of $35,455.00

from Smith.         In relation to his $100,000.00 offer, Smith argues

that    the    district   court     incorrectly      concluded       that   Barrow’s



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attorneys’ fees and court costs, together with her recovery, were

such   that   they   defeated   the   larger   offer.   Both   of   Smith’s

arguments result in his conclusion that he should not be liable for

Barrow’s post-offer costs or fees and that he should be able to

recover his costs from Barrow.

       Federal Rule of Civil Procedure 68 “permits defendants in an

action to present an offer of judgment to the plaintiffs at any

time more than 10 days before trial; the plaintiff has 10 days in

which to unconditionally accept the offer.” Ramming v. Natural Gas

Pipeline Co. of Am., 390 F.3d 366, 370 (5th Cir. 2004).             Rule 68

states in pertinent part:

       “At any time more than 10 days before the trial begins,
       a party defending against a claim may serve upon the
       adverse party an offer to allow judgment to be taken
       against the defending party for the money or property or
       to the effect specified in the offer, with costs then
       accrued. . . . If the judgment finally obtained by the
       offeree is not more favorable than the offer, the offeree
       must pay the costs incurred after the making of the
       offer.” FED. R. CIV. P. 68.

The “severe consequences which may result post-trial from rejection

of pre-trial offers” supports Rule 68’s purpose of “encouraging

settlement” and “discouraging protracted litigation.” Ramming, 390

F.3d at 370 n.2.

       We review the district court’s interpretation of Federal Rule

of Civil Procedure 68 de novo. Basha v. Mitsubishi Motor Credit of

Am., Inc., 336 F.3d 451, 453 (5th Cir. 2003).             “The district

court’s findings regarding the factual circumstances under which



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Rule 68 offers and acceptances are made, however, are reviewed

under the clear error standard.”               Id.

     We agree with the district court’s determination that Smith’s

two offers of judgment were ineffective.                   His argument that the

amount Barrow paid to GISD should be subtracted from her recovery

from Smith in analyzing the $30,000.00 offer is incorrect; Barrow

did not recover anything against GISD, and thus there is nothing to

consider    in    relation   to    GISD     in       determining    Barrow’s   total

recovery.    Further, in relation to Smith’s $100,000.00 offer of

judgment, it is true that if one reduced Barrow’s attorneys’ fees

enough at the time that he made the offer, one could say that

Barrow did not recover enough to defeat Smith’s second offer of

judgment.        However, such a result would require a substantial

reduction of these fees.          The district court did not consider the

excessiveness of hourly rates for each attorney to be evenly spread

between the early and later years of this case.                    It was not clear

error or an abuse of discretion for the district court to determine

such a substantial reduction of fees at the time of the $100,000.00

offer would be inappropriate.

                                   CONCLUSION

     For the foregoing reasons, we affirm the district court’s

judgment.

                                    AFFIRMED.




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