UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH H. NORWOOD, individually
and as representative of a class of
citizens,
Plaintiff-Appellee,

v.
                                                                        No. 99-2282
W. C. BAIN, JR., individually and in
his official capacity as Director of
Public Safety for the City of
Spartanburg Police Department;
CITY OF SPARTANBURG,
Defendants-Appellants.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CA-95-1016-7-3)

Argued: May 2, 2000

Decided: June 8, 2000

Before WILKINS and LUTTIG, Circuit Judges, and
Frank W. BULLOCK, Jr., United States District Judge
for the Middle District of North Carolina,
sitting by designation.

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Affirmed in part and reversed in part by unpublished per curiam opin-
ion.

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COUNSEL

ARGUED: Andrew Frederick Lindemann, DAVIDSON, MORRI-
SON & LINDEMANN, P.A., Columbia, South Carolina, for Appel-
lants. W. Gaston Fairey, FAIREY, PARISE & MILLS, P.A.,
Columbia, South Carolina, for Appellee. ON BRIEF: William H.
Davidson, II, James M. Davis, Jr., DAVIDSON, MORRISON &
LINDEMANN, P.A., Columbia, South Carolina, for Appellants.
Suzanne E. Coe, Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

W. C. Bain, Jr., former Chief of the Spartanburg, South Carolina
Police Department, and the City of Spartanburg (collectively, "Appel-
lants") appeal an order of the district court awarding costs and attor-
neys' fees to Joseph H. Norwood. Because we conclude that
Norwood's success in the underlying action was de minimis, we
reverse the award of attorneys' fees.

I.

This action arises from warrantless searches conducted by Spartan-
burg police officers of Norwood and others as they entered a motor-
cycle rally at the Spartanburg County Fairgrounds in September 1994.
Responding to reports indicating that there would likely be violence
at the rally, Chief Bain set up checkpoints at the entrance to the fair-
grounds. Persons wishing to enter the fairgrounds with their motorcy-
cles were stopped, their driver's licenses were examined and
videotaped, and their saddlebags, compartments in their motorcycles,
and their unworn clothing were searched for weapons. The officers
did not conduct searches of the riders themselves or the clothes they

                    2
were wearing. Norwood filed this lawsuit pursuant to 42 U.S.C.A.
§§ 1983, 1985 (West 1994 & Supp. 1999) on behalf of himself and
as representative of a class, alleging that stopping and videotaping
class members at the checkpoint constituted an illegal seizure and that
the warrantless searches of their saddlebags, motorcycle compart-
ments, and unworn clothing violated the Fourth Amendment. Addi-
tionally, Norwood alleged that the search and seizure infringed on the
speech and associational rights of class members. Norwood sought
compensatory and punitive damages as well as injunctive and declara-
tory relief. Specifically, the complaint requested"a declaration ... that
[Appellants'] conduct violated the Plaintiffs' First and Fourth Amend-
ment rights, and an order permanently enjoining[Appellants] from
engaging in this or similar conduct in the future." J.A. 20.

Prior to trial, the district court denied Chief Bain's motion for sum-
mary judgment on the basis of qualified immunity as to the Fourth
Amendment claim. During the trial, the court directed a verdict
against Norwood on the First Amendment claim and on the claim for
punitive damages. After the jury was unable to reach a verdict, the
parties agreed to allow the district court to decide the case based on
the evidentiary record presented. The district court concluded that the
initial seizure of class members at the checkpoint, where they and
their driver's licenses were videotaped, was reasonable and thus did
not violate the Fourth Amendment. The court further determined that
the searches of the saddlebags, compartments, and unworn clothing
were unreasonable in light of the lack of individualized suspicion.
Finding insufficient evidence of compensatory damages, however, the
court declined to award any monetary relief, including nominal dam-
ages, for that violation. The court also denied injunctive relief because
"Bain is no longer the Chief of the Spartanburg Department of Public
Safety. Similarly, the particular facts presented here make a repeat of
this situation highly unlikely." Id. at 123. Norwood appealed the rul-
ing on the seizure claim and the failure to award damages but did not
appeal the dismissal of the First Amendment claim or the denial of
injunctive relief. Appellants cross-appealed the ruling on the Fourth
Amendment search claim and the denial of qualified immunity to
Chief Bain. A divided panel of this court affirmed the district court
on its qualified immunity ruling and the search and seizure issues but
held that Norwood was entitled to nominal damages in an amount not
to exceed one dollar. See Norwood v. Bain, 143 F.3d 843 (4th Cir.

                     3
1998). This decision subsequently was vacated and the case was
reheard en banc. The en banc court unanimously affirmed the legality
of the seizure and the denial of compensatory and punitive damages.
See Norwood v. Bain, 166 F.3d 243, 245 (4th Cir. 1999) (en banc)
(per curiam). The conclusions of the district court that the searches
violated the Fourth Amendment and that Chief Bain was not entitled
to qualified immunity were affirmed by an equally divided court. See
id. In light of this result, a majority of the court voted to reverse the
denial of nominal damages. See id.

Norwood thereafter moved for an award of costs and attorneys'
fees pursuant to 42 U.S.C.A. § 1988(b) (West Supp. 1999). The dis-
trict court granted the motion and awarded $12,801.62 in costs and
$86,813.25 in fees. Appellants appeal this award. 1

II.

Congress has authorized an award of attorneys' fees in certain civil
rights actions in 42 U.S.C.A. § 1988, which provides that "[i]n any
action or proceeding to enforce a provision of sections 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 reason-
able attorney's fee as part of the costs." 42 U.S.C.A. § 1988(b) (foot-
note omitted). Appellants do not dispute that Norwood was a
"prevailing party." Rather, they argue that under Farrar v. Hobby,
506 U.S. 103 (1992), the only reasonable fee in this case is no fee.
_________________________________________________________________
1 Appellants appear to believe that § 1988(b) authorizes an award of
costs as well as attorneys' fees. This belief is mistaken. With certain
exceptions, costs are awarded as a matter of course to a prevailing party.
See Fed. R. Civ. P. 54(d)(1) ("Except when express provision therefor is
made either in a statute of the United States or in these rules, costs other
than attorneys' fees shall be allowed as of course to the prevailing party
unless the court otherwise directs ...."). Section 1988(b) authorizes an
award of "a reasonable attorney's fee as part of the costs" in certain
actions, with certain exceptions. 42 U.S.C.A. § 1988(b) (emphasis
added). Because Appellants argue only that the award pursuant to
§ 1988(b) was unreasonable, we construe their allegation of error as a
challenge to the award of attorneys' fees only. Accordingly, the award
of costs is not affected by our reversal of the award of attorneys' fees.

                     4
We review an award of attorneys' fees by the district court for abuse
of discretion. See McDonnell v. Miller Oil Co. , 134 F.3d 638, 640
(4th Cir. 1998).

In Farrar, the Supreme Court addressed the reasonableness of an
award of attorneys' fees pursuant to 42 U.S.C.A.§ 1988(b) in a case
where the plaintiffs sought $17 million in compensatory damages and
received only one dollar in nominal damages.2 The Court held that
"[w]hen 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." Farrar, 506 U.S. at
115 (citation omitted) (emphasis added). This is because "the most
critical factor in determining the reasonableness of a fee award is the
degree of success obtained," id. at 114 (internal quotation marks omit-
ted), and when the recovery of monetary damages is the purpose of
the suit, a plaintiff who receives only nominal damages has succeeded
in only a technical sense. See id. at 114-16.

The Farrar majority did not discuss the circumstances that might
give rise to the unusual case in which a plaintiff seeking monetary
relief but receiving only nominal damages would nonetheless be enti-
tled to attorneys' fees. Justice O'Connor, writing only for herself,
identified two other factors, in addition to the difference between the
damages sought and the amount recovered, that she would consider
in determining the degree of a plaintiff's success:"the significance of
the legal issue on which the plaintiff claims to have prevailed" and
whether the plaintiff's success "also accomplished some public goal
other than occupying the time and energy of counsel, court, and cli-
ent." Id. at 121-22 (O'Connor, J., concurring); see Brandau v. Kansas,
168 F.3d 1179, 1181-83 (10th Cir.) (applying the factors identified by
Justice O'Connor to determine whether a plaintiff who received only
nominal damages was entitled to a fee award), cert. denied, 526 U.S.
1133 (1999); Briggs v. Marshall, 93 F.3d 355, 361 (7th Cir. 1996)
(same).
_________________________________________________________________

2 Although the original complaint requested injunctive relief, that claim
was dropped in a later amendment to the complaint. See Farrar, 506 U.S.
at 106.

                    5
We have rejected the argument that Farrar mandates that a plain-
tiff who receives only nominal damages necessarily is entitled to no
fee award. See Clark v. Sims, 28 F.3d 420, 424-25 (4th Cir. 1994)
(directing the district court on remand to award fees based on the
plaintiffs' degree of success); see also Carter v. Burch, 34 F.3d 257,
266 (4th Cir. 1994) (affirming the denial of fees to a plaintiff who
received only nominal damages because "[h]ere, as in Farrar, [the
plaintiff's] case involved no broad civil rights issues"). Rather, we
understand Farrar as instructing that "considerations of proportional-
ity" should guide district courts in exercising their discretion in
awarding attorneys' fees. Sheppard v. Riverview Nursing Ctr., Inc.,
88 F.3d 1332, 1335 (4th Cir. 1996). Recognizing that a plaintiff in a
civil rights case might seek more than monetary damages, we have
stated that:

          In appropriate cases, ... courts should consider the reasons
          why injunctive relief was or was not granted, or the extent
          and nature of any declaratory relief. Moreover, Farrar's
          concern was not only with whether the extent of recovery
          accords with the amount of attorney's fees. The decision
          suggested a more general proportionality consideration as
          well: whether the public purposes served by resolving the
          dispute justifies the recovery of fees.

Id. at 1336 (citing Farrar, 506 U.S. at 121-22 (O'Connor, J., concur-
ring)); see LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir.
1998) (stating that "where both monetary and equitable relief have
been pursued, the size of the monetary recovery is not necessarily the
proper measure of the plaintiff's success"). Nevertheless, we have
cautioned the lower courts that in measuring the degree of a plaintiff's
success, "only those changes in a defendant's conduct which are man-
dated by a judgment, consent decree, or settlement in the case at bar
may be considered." Clark, 28 F.3d at 425. When injunctive relief is
sought and denied, "there is even less occasion to permit a change in
conduct to serve as the basis for a fee award under§ 1988." Id.

Here, Norwood failed to obtain all the relief that the class had
sought. Norwood sought compensatory and punitive damages but
received only one dollar in nominal damages. Additionally, Norwood
sought an injunction, which was denied. Finally, the complaint

                    6
alleged violations of class members' First and Fourth Amendment
rights and sought a declaration to that effect. Norwood obtained only
a declaration by the district court that class members' Fourth Amend-
ment rights had been violated, and then only as to part of the chal-
lenged conduct.

Despite Norwood's apparently limited success, the district court
awarded substantial attorneys' fees on two bases. First, the court con-
cluded that "[a]lthough Plaintiffs' ultimate damage award of one dol-
lar is less than their demand at trial, obtaining a judgment declaring
that a constitutional violation occurred is significant, and the litigation
served a valid public purpose." J.A. 376. That public purpose, accord-
ing to the district court, was "clarifying whether or not and to what
extent the administrative search doctrine applied to private gather-
ings." Id. at 379. The court also noted that nonmonetary success was
"one of the primary goals of the lawsuit" and that "[l]aw enforcement
has been put on notice that the Constitution does not permit warrant-
less searches at events such as the ... rally that was the subject of this
lawsuit." Id. at 377. We conclude that neither of these bases justifies
an award of fees.

The district court erred in determining that its declaration clarified
the application of the administrative search doctrine. Although the
court concluded that the warrantless searches of class members'
belongings violated the Fourth Amendment, it devoted only two para-
graphs of its memorandum to the legality of the search and did not
discuss the administrative search doctrine at all. Additionally, because
the legality of the search was affirmed by an equally divided vote of
this court, we have expressed no opinion on this issue.

The district court also erred in determining that its declaration
served the public purpose of putting law enforcement on notice
regarding the legality of searches such as those at issue here. In deny-
ing Chief Bain qualified immunity, the district court necessarily deter-
mined that in September 1994 the searches "violate[d] clearly
established statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). On the reasoning of the district court, then, law enforcement
was already aware that the challenged conduct was unconstitutional.

                     7
Norwood attempts to avoid the fate of the Farrars by arguing that
this is a class action lawsuit brought to challenge a policy or de facto
practice of a city3 rather than the discretionary conduct of one or more
officers. Norwood contends that while the Farrars brought their action
to redress private economic wrongs, he acted in the role of a "private
attorney general" to pursue "the vindication of important rights," Far-
rar, 506 U.S. at 122 (O'Connor, J., concurring). The class here was
successful in obtaining a declaration that the warrantless searches vio-
lated the Fourth Amendment and, Norwood argues, this declaration
served the important public purpose of deterring Spartanburg and
other jurisdictions from committing similar violations in the future.

The district court, however, denied Norwood's request for injunc-
tive relief because the court did not believe the situation was likely
to arise again. The declaration evidently will not have a significant
deterrent effect in Spartanburg. Norwood asserts nonetheless that the
declaratory relief obtained by the class has an even greater public
value than the injunction would have had, because the declaration is
likely to affect law enforcement decisions outside of Spartanburg. As
we explained above, however, the mere declaration by the district
court that the rights of class members were violated did not clarify the
law, and the declaration is thus not likely to have a significant effect
on law enforcement.

In sum, we conclude that an award of attorneys' fees was not justi-
fied on either basis identified by the district court. Nothing else aug-
ments Norwood's limited monetary recovery, and so the conclusion
that the class achieved a significant degree of success is unjustified.
See Pino v. Locascio, 101 F.3d 235, 239 (2d Cir. 1996) (observing
that "[t]he vast majority of civil rights litigation does not result in
ground-breaking conclusions of law, and therefore, will only be
appropriate candidates for fee awards if a plaintiff recovers some sig-
nificant measure of damages or other meaningful relief"); see also
Brandau, 168 F.3d at 1184 (Baldock, J., dissenting) ("Where a jury
awards a prevailing party nominal damages and nothing more, an
award of attorney's fees is the exception, not the general rule.").
_________________________________________________________________
3 The district court found that Chief Bain was the official policymaker
for the City in organizing the checkpoint and conducting the searches,
and this ruling was not appealed.

                    8
III.

Because Norwood received only nominal damages, his request for
an injunction was denied, and the potential impact on the public of the
declaratory relief is limited, we conclude that Norwood's success here
was minimal and that the district court abused its discretion in award-
ing attorneys' fees. Accordingly, we affirm the order insofar as it
awards costs and reverse insofar as it awards attorneys' fees.

AFFIRMED IN PART AND REVERSED IN PART

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