Howard L. Wyatt, Plaintiff-appellant-cross-appellee, v. Bill Cole, et al., Defendants-appellees,andlloyd S. Jones, Wiley Magee & Mike Moore,defendants-appellees-cross-appellants, 928 F.2d 718 (5th Cir. 1991)

Howard L. Wyatt appeals a summary judgment order denying his claim for monetary damages under 42 U.S.C. § 1983 and awarding less than his requested attorneys fees under 42 U.S.C. § 1988. We find that monetary damages are barred by the defendants' immunities and that the fee award against the state was not clearly erroneous, but remand to the district court for the calculation of a reasonable fee award against defendant Bill Cole.I.

Howard L. Wyatt and Bill Cole are former business partners. On July 25, 1986, with the assistance of his attorney, John Robbins II, Cole filed a complaint in replevin against Wyatt to the Circuit Court of Simpson County, Mississippi, accompanied with a replevin bond of $18,000. Cindy Jensen, a deputy of County Clerk Wiley Magee, then issued a writ of replevin. Circuit Judge Jerry Yeager signed an order directing the county sheriff to execute the writ of replevin several days later. Sheriff Jones, Deputy Sheriff Smith, wrangler Ray Roberts, and several others subsequently seized 24 head of cattle, a tractor, and parts on July 29 and 30, 1986. The writ and summons were served on Wyatt on July 31, 1986. Several months later, on October 3, 1986, Judge Yeager entered an order dismissing the writ, continuing the replevin bond in force, and ordering the immediate restoration of Wyatt's property. Judge Yeager dismissed the action without prejudice on September 3, 1988, although Cole had not yet complied with the October 3, 1986, order. Mississippi's replevin under bond statute, Miss.Code Ann. Sec. 11-37-101,¹  prescribed this procedure.

Wyatt filed this suit under 42 U.S.C. § 1983, 28 U.S.C. § 2201, and several state statutes, in July of 1987. When Mississippi filed as an amicus curiae, Wyatt added the state as a defendant, later substituting Attorney General Moore in his official capacity for the state.

The district court declared Sec. 11-37-101 unconstitutional on April 13, 1989, 710 F. Supp. 180, and ordered Wyatt to detail the claims against each defendant by moving for summary judgment. Wyatt did so, requesting damages and attorneys fees from Cole and Robbins, Jones, Smith, Magee, and Jensen, in their official capacities, and Simpson County, alternatively from Moore in his official capacity. The district court granted summary judgment against Cole for any damages accruing after April 14, 1989, denied summary judgment against Robbins, and dismissed the claims against Simpson County, Jones, Smith, Magee, Jensen, and Roberts.

After a jury found no actual damages, Wyatt moved for nominal damages and attorneys fees against Cole, Robbins, and Simpson County, and for attorneys fees against Moore in his official capacity. The district court found Mississippi liable for fifty percent of the fees earned for work before it declared Sec. 11-37-101 unconstitutional, but found the remaining defendants were not liable for any damages or fees.

Defendants do not appeal the declaratory judgment.²  Wyatt seeks monetary damages from the private defendants, Cole and Robbins, and attorneys fees from both the private defendants and the state of Mississippi. He waived his claims against the county defendants individually below and, at oral argument before this court, conceded that those defendants are not liable in their capacities as county officials.³ 

Based on our opinion in Folsom Inv. Co., Inc. v. Moore, 681 F.2d 1032, 1037 (5th Cir. 1982), the district court found that Cole and Robbins were entitled to a good faith immunity from damages accrued before it declared Sec. 11-37-101 unconstitutional. In Folsom, we held that "a Sec. 1983 defendant who has invoked an attachment statute is entitled to an immunity from monetary liability so long as he neither knew nor reasonably should have known that the statute was unconstitutional."⁴ 

Wyatt contends that Folsom is inconsistent with Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980), where the Supreme Court held that private defendants accused of conspiring with a judge were not entitled to a derivative immunity. In Folsom, however, we stated quite clearly that the immunity of private defendants is not derivative, but rather is independent and functional:

The private party who invokes a presumptively valid attachment law is not entitled to immunity because the officer executing it is. Rather, quite independently, the private party is entitled to an immunity because of the important public interest in permitting ordinary citizens to rely on presumptively valid state laws, in shielding citizens from monetary damages when they reasonably resort to a legal process later held to be unconstitutional, and in protecting a private citizen from liability when his role in any unconstitutional action is marginal.

Wyatt also argues that, even if Cole and Robbins were entitled to a good faith immunity under Folsom, their actions here were not in good faith. He points out that Sec. 11-37-101 was clearly unconstitutional after Johnson v. American Credit Co. of Georgia, 581 F.2d 526 (5th Cir. 1978), where we struck down a similar Georgia prejudgment statute. This contention gives us some pause, but it is not so clear as Wyatt would have it. Indeed, as late as Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 2756, 73 L. Ed. 2d 482 (1982), the role of a private actor invoking state attachment procedure was legally uncertain. Folsom, in turn, left the precise contours of the immunity to future cases. Specifically, Folsom was unwilling to conclude that "a private citizen should be charged with the same degree of knowledge as to whether a statute or practice is unconstitutional that would be attributed to a public official." Id. at 1037. Today, we squarely face that issue.

We need not conclude that a private actor is entitled to rely on any statutory relic, regardless of its current absurdity, in order to conclude that Cole and Robbins, as non-governmental actors, were entitled to rely on Sec. 11-37-101 until the district court declared it unconstitutional. Rather, we say only that liability on these facts would undercut the purpose of the immunity, promoting lawfulness by allowing citizens the reasonable sanctuary of the law. It is true that the statutory scheme was in legal jeopardy. It is also true that Cole and Robbins acted with the assistance of government officials who were giving full force and effect to the statutory procedure. The presence of these officials contributed to the reasonableness of the private actors' conformity to the statutory procedure. In sum, the question is close, but on balance we are persuaded that reliance upon the statute by the private actors was not an act of unreasonable ignorance. The first line of responsibility rests with the legislative body enacting the statute. The next line of responsibility rests with the enforcing officials. When the legislature has not repealed, and executive and judicial officials are still enforcing a statute, it is not unreasonable for private actors to fail to quickly comprehend a developing body of doctrine that portends trouble for its constitutionality.⁵ 

The district court concluded that Wyatt had prevailed on the central issue in the case, the constitutionality of Sec. 11-37-101, and awarded Wyatt's attorneys $16,588.15 in fees under Sec. 1988, to be paid by the state of Mississippi. Wyatt had requested a much larger fee award, but the district court limited the award to compensate Wyatt's attorneys only for their success on the constitutional issue.

A. Qualified immunity, sovereign immunity, and Sec. 1988.

Wyatt argues that Cole and Robbins should be held jointly liable for his attorneys fees. But the same good faith immunity that insulates the private defendants from monetary damages also forecloses liability for attorneys fees. Familias Unidas v. Briscoe, 619 F.2d 391, 406 (5th Cir. 1980); see also Clanton v. Orleans Parish School Bd., 649 F.2d 1084, 1103 (5th Cir. 1981); and Universal Amusement Co., Inc. v. Vance, 559 F.2d 1286, 1301 (5th Cir. 1977), aff'd on other grounds, 445 U.S. 308, 100 S. Ct. 1156, 63 L. Ed. 2d 413 (1980); accord Stevens v. Gay, 792 F.2d 1000, 1003 (11th Cir. 1986). " [L]iability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity or on the merits, Sec. 1988 does not authorize a fee award against that defendant." Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3104, 87 L. Ed. 2d 114 (1985). Cole and Robbins are thus immune from liability for attorneys fees for all acts taken before the district court declared Sec. 11-37-101 unconstitutional.

Mississippi stands on different footing. Attorney General Moore, Sheriff Jones, Deputy Sheriff Smith, and Clerk Magee were sued in their official capacities; good faith immunity is not available as a defense in official-capacity actions. The state is entitled only to its immunity under the Eleventh Amendment and as a sovereign. Graham, 473 U.S. at 167, 105 S. Ct. at 3105. As the Supreme Court explained in Hutto v. Finney, 437 U.S. 678, 693, 98 S. Ct. 2565, 2574, 57 L. Ed. 2d 522 (1978), Congress has plenary power to abrogate the immunity of the states under the Eleventh Amendment. Congress intended to authorize awards of attorneys fees under Sec. 1988 to prevailing parties in official-capacity actions even when the state is immune from damages under Sec. 1983. Id.; see also Pulliam v. Allen, 466 U.S. 522, 527, 104 S. Ct. 1970, 1973, 80 L. Ed. 2d 565 (1984).⁶ 

B. Judge Yeager, Sheriff Jones, and Clerk Magee as state

agents.

In a cross-appeal, Mississippi argues that Attorney General Moore was an improper party to the suit, as he did not contribute to the found constitutional violation. We need not reach this issue because the state's argument overlooks the fact that Yeager, Jones, Smith, Magee, and Jensen contributed to the violation by enforcing Sec. 11-37-101. As we explained in Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990):

A county official pursues his duties as a state agent when he is enforcing state law or policy. He acts as a county agent when he is enforcing county law or policy. It may be possible for the officer to wear both state and county hats at the same time, ... but when a state statute directs the actions of an official, as here, the officer, be he state or local, is acting as a state official.

See also Bigford v. Taylor, 834 F.2d 1213, 1222-23 (5th Cir. 1988); and Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980).⁷  As in Echols, Bigford, and Familias, Sec. 11-37-101 commanded the actions of the county defendants; in fact, it was the statute's limit of Judge Yeager's discretion that undergirded the determination that Sec. 11-37-101 was unconstitutional. Yeager, Jones, Smith, Magee, and Jensen acted as state agents, and Mississippi is liable.⁸ 

The state also contends that it is not liable for attorneys fees because it cannot be liable on the merits (citing Graham and Will v. Michigan Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)). The problem with the argument is that Mississippi overstates Will "because 'official capacity actions are not treated as actions against the state.' " Will, 109 S. Ct. at 2311 n. 10 (citing Graham, 473 U.S. at 167 n. 14, 105 S. Ct. at 3106 n. 14). Graham and Will were thus no bar to the award of attorneys fees against the state.⁹ 

C. Wyatt's status as a prevailing party.

We turn to whether Wyatt was a prevailing party. It is true that the district court declared Sec. 11-37-101 unconstitutional, but it also denied Wyatt's damage claims. The judge below never ruled on the request for an injunction.

A declaratory judgment supports a fee award under Sec. 1988 "if, and only if, it affects the behavior of the defendant towards the plaintiff." Rhodes v. Stewart, 488 U.S. 1, 109 S. Ct. 202, 203, 102 L. Ed. 2d 1 (1988); see also Hewitt v. Helms, 482 U.S. 755, 761, 107 S. Ct. 2672, 2676, 96 L. Ed. 2d 654 (1987). In Rhodes, the Court reversed an award of attorneys fees in an action challenging prison conditions because one of the plaintiffs had died at the time that the declaratory judgment was entered, and the other was no longer in custody. The Court reasoned that the declaratory judgment "afforded the plaintiffs no relief whatsoever," as the case became moot before the judgment was entered. This court relied on Rhodes in partially reversing an award of attorneys fees in Jackson v. Galan, 868 F.2d 165 (5th Cir. 1989), reasoning that the declaratory judgment did not compel the defendant, a county court clerk, to change his procedures.

The declaratory judgment in this case affected the behavior of Cole towards Wyatt by effectively requiring him to return the property seized. He is liable for attorneys fees accrued after the date of the declaratory judgment because he continued to hold Wyatt's property for several months thereafter.¹⁰  Robbins, on the other hand, is not liable for attorneys fees because he performed no acts subsequent to the declaratory judgment that contributed to the constitutional violation. In contrast to Rhodes and Jackson, Wyatt also achieved a legal victory over the state. The county officials, as state actors, vigorously defended their actions under Sec. 11-37-101 until the district court declared it unconstitutional. Wyatt succeeded in his claim that the statute was invalid and not to be adhered to. He was a prevailing party.

D. The size of the fee.

Finally, Wyatt contends that the district court erred in calculating the fee award against Mississippi. The district court refused to award fees for work done after the date of the declaratory judgment and reduced, as excessive and duplicative, hours for time before the declaratory judgment by thirty percent, and by another fifty percent to account for limited success. We review the size of the fee award only for abuse of discretion. See City of Riverside v. Rivera, 477 U.S. 561, 572-73, 106 S. Ct. 2686, 2693-94, 91 L. Ed. 2d 466 (1986); and Nash v. Chandler, 848 F.2d 567, 572 (5th Cir. 1988).

The fee award was consistent with the Supreme Court's directives in Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983), and Texas State Teachers v. Garland Indep. School D., 489 U.S. 782, 109 S. Ct. 1486, 103 L. Ed. 2d 866 (1989). A district court may reduce the hours claimed to account for time expended on unsuccessful claims. This follows from defining a "prevailing party" as one who has "succeeded on 'any significant issue in litigation which achieve [d] some of the benefit the parties sought in bringing suit.' " Texas State Teachers, 109 S. Ct. at 1486 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).

The Court distinguished between two situations in an effort to guide the discretion of lower courts in Hensley and Texas State Teachers. When claims are based on different facts and legal theories, the district court should treat the claims as separate suits and award attorneys fees only for time expended on the successful claims. On the other hand, when the claims arise from a common core of facts and involve related legal theories, the district court should attempt to arrive at a reasonable fee award "either by attempting to identify specific hours that should be eliminated or by simply reducing the award to account for the limited success of the plaintiff." See Hensley, 461 U.S. at 434-36, 103 S. Ct. at 1939-41; Texas State Teachers, 109 S. Ct. at 1492.

Wyatt's request for attorneys fees was of the second type. The district court chose an appropriate fee award both by identifying the time expended by his attorneys after the declaratory judgment and, in addition, by reducing the hours claimed before the declaratory judgment to account for his limited success.

Wyatt argues that the reduced fee award is inconsistent with City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986), and Nash v. Chandler, 848 F.2d 567 (5th Cir. 1988), but we find both cases distinguishable. In Riverside, the Court held only that a fee award need not be proportional to the amount of monetary damages recovered. There is a huge difference, however, between an unsuccessful claim and a small monetary recovery on a successful claim. In Nash, 848 F.2d at 572-73, we affirmed a fee award that included compensation for hours logged in pursuing unsuccessful claims that the district court believed were "highly relevant to [the plaintiff's] successful challenge to the statute" and "not so distinct from the successful claims so as to be severed for purposes of awarding attorneys fees." Here, the hours expended after the date of the declaratory judgment were severable. As to work prior to the declaratory judgment, we cannot say that the district court's decision to reduce the hours claimed by fifty percent was clearly erroneous, especially so with no detailed records.

The judgment of the district court is AFFIRMED in part and, in part, REVERSED and REMANDED. We return the case to the district court for the calculation of a reasonable fee award against Cole.