Steven Lefemine v. Dan Wideman

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 8:08-cv-03638-HMH. [999393661]. [13-1629]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1629

STEVEN LEFEMINE, d/b/a Columbia Christians for Life,
Plaintiff - Appellant,
v.
DAN WIDEMAN, individually and in his official capacity; MIKE
FREDERICK, individually and in his official capacity; LONNIE
SMITH, individually and in his official capacity; BRANDON
STRICKLAND, individually and in his official capacity;
SHERIFF TONY DAVIS, in his official capacity,
Defendants – Appellees,
and
GREENWOOD COUNTY SHERIFF'S OFFICE,
Defendant.

Appeal from the United States District Court for the District of
South Carolina, at Anderson.
Henry M. Herlong, Jr., Senior
District Judge. (8:08-cv-03638-HMH)

Argued:

March 19, 2014

Decided:

July 11, 2014

Before DUNCAN, WYNN, and DIAZ, Circuit Judges.

Reversed and remanded by published opinion.
Judge Wynn wrote
the opinion, in which Judge Duncan and Judge Diaz joined.

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ARGUED: Steven W. Fitschen, NATIONAL LEGAL FOUNDATION, Virginia
Beach, Virginia, for Appellant.
Andrew Lindemann, DAVIDSON &
LINDEMANN, P.A., Columbia, South Carolina, for Appellees.
ON
BRIEF: Robert D. Garfield, DAVIDSON & LINDEMANN, P.A., Columbia,
South Carolina, for Appellee Mike Frederick. Russell W. Harter,
Jr., CHAPMAN, HARTER & HARTER, P.A., Greenville, South Carolina,
for Appellees Dan Wideman, Lonnie Smith, Brandon Strickland, and
Tony Davis.

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WYNN, Circuit Judge:
Plaintiffs who prevail in suits to vindicate civil rights
are

entitled

to

attorneys’

fees

unless

special

circumstances

make a fee award unjust.
Here, Plaintiff Steven C. Lefemine, leader of the Columbia
Christians for Life, successfully sued various Greenwood County
Sheriff’s Office officials for First Amendment violations.
the

district

immunity,

(2)

discrimination
County

court

deemed

the

absence

against

Sheriff’s

“(1)
of

abortion

Office,

and

the
a

Defendants’
policy

protestors
(3)

the

by

or

limited

qualified
custom

the

But

of

Greenwood
nature

of

[Lefemine’s] injunctive relief” to be special circumstances that
made the award of attorneys’ fees to Lefemine unjust. 1
however,

hold

that

the

relief

Lefemine

obtained

was

We,

notably

broader than the district court suggested and that the other two
circumstances are not “special” and do not render a Section 1988
fee award unjust.

Accordingly, we reverse.

I.
In November 2005, Lefemine and other members of his group
Columbia Christians for Life demonstrated on a public sidewalk
at the busiest intersection in Greenwood County, South Carolina.
1

Lefemine v. Wideman, No. 8:08-3638-HMH, 2013 WL 1499152,
at *4 (D.S.C. Apr. 9, 2013).
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Lefemine v. Wideman, No. 8:08-3638-HMH, 2013 WL 1499152, at *1
(D.S.C.

Apr.

9,

2013).

They

held

large

signs

with

graphic

images of aborted fetuses hoping to “shock the consciences of
those

who

Christians

[saw]
for

the

Life’s

signs”

and

thereby

anti-abortion

convey

message.

Columbia

Lefemine

v.

Wideman, 672 F.3d 292, 296 (4th Cir.), vacated 133 S. Ct. 9
(2012).
Passers-by who saw the signs complained to the Greenwood
County Sheriff’s Office.
signs

with

her

For example, a mother who drove by the

five-year-old

son

reported

to

the

Sheriff’s

Office that her son “was ‘screaming, crying’ after seeing the
signs.”

Lefemine, 672 F.3d at 296.

In response, Lieutenant Randy Miles informed the Columbia
Christians for Life protestors that the Sheriff’s Office had
received

“complaints

about

the

graphic

photographs”

and

that

“this was causing a disturbance in the traffic flow at th[e]
intersections.”

Id.

(quotation

marks

omitted).

At

the

direction of Chief Deputy Mike Frederick, Major Lonnie Smith
instructed

Lefemine

to

take

the

signs

down.

Major

Smith

explained that he would have “no other choice” but to ticket
Lefemine for breach of the peace if the protestors continued to
display the signs.

Lefemine, 2013 WL 1499152, at *2.

When

Lefemine asserted that this demand violated the First Amendment,
Major Smith responded: “You do not have a right to be offensive
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other

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people

in

that

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manner.”

Id.

Ultimately,

the

protestors packed up the signs and left.
The

following

year,

an

attorney

for

the

National

Legal

Foundation sent a letter on behalf of Columbia Christians for
Life

to

Sheriff

Dan

Wideman.

The

letter

informed

Sheriff

Wideman that “volunteers will be returning to the Greenwood area
again

in

freedoms

the
by

J.A. 219.

near

future

exercise

their

the

highlighting

to

First

national

tragedy

of

Amendment
abortion.”

The letter asserted that Major Smith’s actions the

previous year “constituted content-based discrimination” and “a
clear violation of its members’ First Amendment rights.”

Id.

Finally, the letter warned that “any further interference with
[Columbia Christians for Life’s] message by you or your officers
will

leave

us

no

choice

but

to

remedies without further notice.”

pursue

all

available

legal

Id.

Chief Deputy Frederick responded on behalf of the Sheriff’s
Office.
“were

He stated that the Office’s actions the previous year

absolutely

enforcing

content-neutral,

existing

roadway

in

that

safety,

[Major

public

Smith]

decency,

was
and

maintenance of order statutes in order to protect the motoring
public from illegal and unwarranted distraction.”
Chief

Deputy

circumstances

Frederick
again,

the

declared

that,

Sheriff’s

faced

Office

J.A. 225.

with

would

the

respond

same
“in

exactly the same manner: order the person(s) to stop or face
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criminal sanctions . . . .”
“criminal

sanctions[,]”

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Id.

Lefemine

Yet, despite the threat of
and

Columbia

Christians

for

Life returned to the same area in November 2006 and again in
2007—and those protests took place without incident.
In

October

Amendment

2008,

violations

Lefemine
and

filed

seeking

a

a

suit

alleging

declaratory

First

judgment,

permanent injunction, damages, and attorneys’ fees.

a

Following a

hearing on the parties’ cross-motions for summary judgment, the
district court held that the Officers had violated Lefemine’s
First Amendment rights and enjoined the Officers “from engaging
in content-based restrictions on [Lefemine’s] display of graphic
signs without narrowly tailoring [the] restriction to serve a
compelling state interest.”

Lefemine v. Davis, 732 F. Supp. 2d

614, 627 (D.S.C. 2010).
Nevertheless, the district court held that Lefemine could
not

recover

damages.

It

concluded

that

the

Officers

were

entitled to qualified immunity because the unconstitutionality
of their conduct had not previously been clearly established.
The court further held that Lefemine failed to establish that
the Sheriff’s Office had a custom or policy of infringing on
citizens’ First Amendment rights.

Finally, the district court

refused to award Lefemine attorneys’ fees.
On appeal, this Court affirmed on all issues.

Lefemine

sought and was granted certiorari by the United States Supreme
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Court, which ultimately rebuffed our holding that Lefemine did
not qualify as a “prevailing party” under Section 1988 and thus
was not entitled to attorneys’ fees.

The Supreme Court held

that “the injunction ordered the defendant officials to change
their behavior in a way that directly benefited the plaintiff,”
thereby making him a “prevailing party.”
133 S. Ct. 9, 10 (2012).
courts

below

addressed

Lefemine v. Wideman,

However, because “[n]either of the
whether

any

special

circumstances

exist[ed] in this case” making a fee award unjust, id. at 12,
the Supreme Court remanded to us, and we, in turn, remanded to
the district court to award fees unless the court determined by
express

findings

that

special

circumstances

rendered

such

an

award unjust.
On

remand,

the

district

court

found

three

special

circumstances that made an attorneys’ fees award to Lefemine
unjust: “(1) the Defendants’ qualified immunity, (2) the absence
of

a

policy

or

custom

of

discrimination

against

abortion

protestors by the Greenwood County Sheriff’s office, and (3) the
limited nature of the injunctive relief.”
1499152, at *4.

Lefemine, 2013 WL

With this appeal, we now review the district

court’s ruling denying Lefemine his attorneys’ fees under the
abuse of discretion standard.

Mercer v. Duke Univ., 401 F.3d

199, 203 (4th Cir. 2005) (“A district court’s decision to grant

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or deny attorney’s fee[s] under [S]ection 1988 is reviewed for
abuse of discretion.”).

II.
A.
The

Civil

Rights

Attorney’s

Fees

Awards

Act

of

1976

authorizes the award of “a reasonable attorney’s fee” to “the
prevailing

party”

in

certain

civil

suits brought under Section 1983.

rights

actions,

including

42 U.S.C. § 1988(b).

“The

purpose of [Section] 1988 is to ensure effective access to the
judicial

process”

for

persons

with

civil

rights

grievances.

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quotation marks
and citation omitted).
“Congress
found

that

the

enacted

[Section]

private

market

1988
for

specifically

legal

services

because

it

failed

to

provide many victims of civil rights violations with effective
access to the judicial process.”
477

U.S.

561,

576

(1986)

City of Riverside v. Rivera,

(citations

omitted).

Congress

attributed this market failure in part to the fact that “[t]hese
victims ordinarily cannot afford to purchase legal services at
the rates set by the private market.”

Id. (citations omitted).

Crucially for this case, Congress also attributed the need
for Section 1988 to public official immunities that severely
limit

money

damages

even

in

the
8

face

of

success:

“[W]hile

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damages are theoretically available under the statutes covered
by [Section 1988], . . . in some cases, immunity doctrines and
special defenses, available only to public officials, preclude
or severely limit the damage remedy.”

Id. at 577 (quotation

marks, citation, and emphasis omitted).

Accordingly, “awarding

counsel

fees

particularly

to

prevailing

important

constitutional

rights

Report, at 9.”

plaintiffs

and
are

necessary
to

be

in
if

such

litigation

[f]ederal

adequately

civil

protected.’

is
and

House

Id. (quotation marks and citation omitted).

See

also Pulliam v. Allen, 466 U.S. 522, 527 (1984) (noting that
“the

legislative

history

of

[Section]

1988

clearly

indicates

that Congress intended to provide for attorney’s fees in cases
where

relief

properly

is

granted

against

officials

who

are

immune from damages awards” and noting that “awarding counsel
fees to prevailing plaintiffs in such litigation is particularly
important and necessary if [f]ederal civil and constitutional
rights are to be adequately protected”).
In

light

prevailing
fee

unless

unjust.”

of

plaintiff
special
Hensley,

marks omitted).

Section
“should

1988’s

ordinarily

circumstances
461

U.S.

language

at

would
429

and

purpose,

recover

an

render

such

(citations

and

a

attorney’s
an

award

quotation

“Courts have universally recognized that [the]

special circumstances exception is very narrowly limited.”

Doe

v. Bd. of Educ. of Baltimore Cnty., 165 F.3d 260, 264 (4th Cir.
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1998) (quotation marks and citation omitted).

Indeed, “[o]nly

on rare occasions does a case present such circumstances . . .
.”

Id.

See also, e.g., DeJesus Nazario v. Morris Rodriguez,

554 F.3d 196, 200 (1st Cir. 2009) (stating that the special
circumstances justifying denial of attorneys’ fees are “few and
far between”).
For

example,

the

Supreme

Court

recognized

a

special

circumstance justifying the denial of attorneys’ fees to a pro
se plaintiff who was an attorney in Kay v. Ehrler, 499 U.S. 432
(1991).

A fee award would not further “the overriding statutory

concern . . . in obtaining independent counsel for victims of
civil

rights

concluded

violations.”

that

“[t]he

Id.

at

statutory

437.

The

policy

of

Supreme

Court

furthering

the

successful prosecution of meritorious claims is better served by
a rule that creates an incentive to retain counsel . . . .”

Id.

at 438.
Similarly, in

Chastang v. Flynn & Emrich Co. we recognized

a rare special circumstance justifying the denial of attorneys’
fees

under

Section

did

not

vindicate civil rights.

541 F.2d 1040 (4th Cir. 1976).

In

Chastang,

profit-sharing

an

1988

employer’s

where

discriminated based on sex.
when

incorporated

into

the

the

plaintiffs’

and

suit

retirement

plan

The discrimination had been legal
plan,

could

not

be

modified

unilaterally by the defendants once it became illegal, but had
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been amended “with reasonable dispatch . . . once the need for
amendment

was

established”

and

litigation began.

Id. at 1045.

plan

to

in

was

amended

any

event

before

the

We held that “[b]ecause the

eliminate

its

illegally

discriminatory

aspects before plaintiffs’ suits were filed, they cannot be said
to

have

derived

litigation.”

any

Id.

benefit,

direct

or

indirect,

from

the

Accordingly, we upheld the district court’s

finding of special circumstances.

Id.

By contrast, in Bills v. Hodges, we held that the district
court abused its discretion by denying successful civil rights
plaintiffs their attorneys’ fees under Section 1988.
844 (4th Cir. 1980).
them

with

an

628 F.2d

In Bills, the plaintiffs’ landlord served

eviction

notice

motivated

by

“biracial dating and entertainment practices.”

the

plaintiffs’

Id. at 845.

The

district court awarded the plaintiffs injunctive relief under
the

Civil

Rights

Act

and

Fair

Housing

Act

but

denied

them

attorneys’ fees under Section 1988 because the plaintiffs “could
well afford to hire their own lawyers” and because “the court
felt the

defendant

acted

in

good

faith.”

Id.

at

847.

We

squarely rejected both of those “special circumstances” and held
that the plaintiffs were “entitled to an award of attorneys’
fees . . . .”

Id.

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B.
As stated previously, the district court here held that
three “special circumstances” justified the denial of attorneys’
fees to Lefemine: “(1) the Defendants’ qualified immunity, (2)
the

absence

of

a

policy

or

custom

of

discrimination

against

abortion protestors by the Greenwood County Sheriff’s Office,
and (3) the limited nature of [Lefemine’s] injunctive relief.”
Lefemine, 2013 WL 1499152, at *4.
doing,

the

district

court

Lefemine argues that in so

committed

reversible

error.

To

determine whether the district court abused its discretion in
determining

that

“special

circumstances”

justified

denying

Lefemine his fees, we examine each of the circumstances upon
which the district court relied.
1.
The

district

court

first

found

that

a

“special

circumstance” arose from its determination that the Defendant
Officers were entitled to qualified immunity.

Because qualified

immunity shielded the Defendant Officers from personal liability
for damages, Lefemine was unable to obtain even nominal damages—
the only remedy Lefemine sought but failed to obtain. 2
672 F.3d at 297–301, 303.

Lefemine,

The district court deemed qualified

2

Although Lefemine’s complaint included a prayer for
“compensatory
and/or
nominal”
damages,
J.A.
21,
Lefemine
abandoned his quest for compensatory damages and sought only
nominal damages at summary judgment.
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immunity “special” such that it made an award of attorneys’ fees
under Section 1988 unjust.
But neither this Court nor the Supreme Court has ever held
that

qualified

immunity

constitutes

a

special

circumstance

supporting the denial of Section 1988 attorneys’ fees.
the case law suggests quite the opposite.

In fact,

As the Supreme Court

has underscored, in many Section 1988 cases, “immunity doctrines
and

special

defenses,

available

only

to

public

preclude or severely limit the damage remedy.”

Rivera, 477 U.S.

at 577 (quotation marks and emphasis omitted).
“awarding

counsel

fees

to

prevailing

officials,

Accordingly,

plaintiffs

in

such

litigation is particularly important and necessary if [f]ederal
civil and constitutional rights are to be adequately protected.”
Id. (quotation marks and citation omitted).
In

its

qualified

immunity

analysis,

the

district

court

sought to bolster its special circumstance finding by noting
that “Defendants’ actions [were] taken in good faith” and that
“[i]t

was

never

the

Defendants’

intent

[Lefemine’s] First Amendment rights . . . .”
1499152,
repeatedly

at

*5.

Yet

rejected

we,

good

and

faith

our
as

to

upon

Lefemine, 2013 WL

sister
a

infringe

circuits,

special

have

circumstance

justifying the denial of Section 1988 attorneys’ fees—and for
good reason:

“The Civil Rights Attorney’s Fees Awards Act is

not meant

a

as

‘punishment’

for
13

‘bad’

defendants

who

resist

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Filed: 07/11/2014

claims

in

bad

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faith.

Rather,

it

is

meant

to

compensate civil rights attorneys who bring civil rights cases
and win them.”

Williams v. Hanover Hous. Auth., 113 F.3d 1294,

1302 (1st Cir. 1997).

See also, e.g., Bills, 628 F.2d at 847

(“The district court also refused to award attorneys’ fees at
least partly because the court felt the defendant acted in good
faith.

However,

circumstance

that

a

defendant’s

would

render

good
an

faith

award

is
of

not
fees

a

special

unjust.”);

Wilson v. Stocker, 819 F.2d 943, 951 (10th Cir. 1987) (noting
that “the alleged special circumstances amount to no more than
assertions that the Attorney General has acted in good faith, a
ground overwhelmingly rejected by the courts” and that Section
1988 “is not designed to penalize defendants but to encourage
injured individuals to seek relief”); Lampher v. Zagel, 755 F.2d
99,

104

(7th

Cir.

1985)

(calling

the

defendant’s

good

faith

“irrelevant” to a Section 1988 fee determination); Kirchberg v.
Feenstra, 708 F.2d 991, 999 (5th Cir. 1983) (“Good faith is not
a special circumstance.”).
We believe that special government immunities that restrict
civil

rights

plaintiffs’

recoveries

weigh

in

favor

certainly not against—awarding Section 1988 fees.
court here erred in holding otherwise.
that

the

district

court

abused

14

its

of—and

The district

Accordingly, we hold

discretion

in

denying

an

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attorneys’ fee award to Lefemine because the Officer Defendants
were shielded by qualified immunity.
2.
The district court also found that “the absence of a policy
or custom of discrimination against abortion protestors by the
Greenwood

County

circumstance

Sheriff’s

that

justified

award under Section 1988.

Office”
the

constituted

denial

of

an

a

special

attorneys’

fee

Lefemine, 2013 WL 1499152, at *4.

We

entity

of

disagree.
Unless

a

government

discrimination,

a

court

will

has

not

a

policy

attribute

or

an

custom

individual’s

constitutional violations to the government entity.

Monell v.

Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 694
(1978) (“[A] local government may not be sued under [Section]
1983 for an injury inflicted solely by its employees or agents.
Instead,

it

is

when

execution

of

a

government’s

policy

or

custom, whether made by its lawmakers or by those whose edicts
or

acts

may

fairly

be

said

inflicts

the

injury

that

to

the

represent

government

responsible under [Section] 1983.”).

official
as

an

policy,

entity

is

Here, Lefemine failed to

show that the Greenwood County Sheriff’s Office had a policy or
custom of discrimination.

The Sheriff’s Office thus could not

be

Officer

held

liable

for

the

15

Defendants’

constitutional

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violations, and Lefemine could not obtain even nominal damages
Lefemine, 672 F.3d at 297-301. 3

from the Sheriff’s Office.
But

neither

this

Court

nor

the

Supreme

Court

has

ever

suggested that a plaintiff’s inability to bring a viable Monell
claim

against

prevailing

a

government

civil

rights

entity

somehow

plaintiffs

from

blocks

otherwise

obtaining

their

attorneys’ fees under Section 1988.

And for good reason—because

Section

a

1988

“is

not

meant

as

‘punishment’

for

‘bad’

defendants” but is instead “meant to compensate civil rights
attorneys who bring civil rights cases and win them.”
113 F.3d at 1302.
suggest

that

a

Williams,

It would turn Section 1988 on its head to
plaintiff

officials

for

civil

attorneys’

fees

for

who

rights

the

successfully
violations

profoundly

sues

should

non-“special”

government
be

denied

circumstance

that the entity for whom those officials work could not be held
liable under Monell.
Again, “awarding counsel fees to prevailing plaintiffs in”
civil

rights

litigation

against

government

entities

and

officials “is particularly important and necessary if [f]ederal
civil and constitutional rights are to be adequately protected.”
Rivera, 477 U.S. at 577 (quotation marks and citation omitted).
The district court here erred in suggesting otherwise by deeming
3

Though, again, nominal damages
Lefemine sought but failed to achieve.
16

was

the

only

relief

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of

a

custom

or

Pg: 17 of 20

policy

a

special

circumstance.

Denying Lefemine attorneys’ fees on that basis constituted an
abuse of discretion.
3.
Finally, the district court found that the limited nature
of

the

relief

granted

to

Lefemine

constituted

a

circumstance making a Section 1988 fee award unjust.

special
Yet this

factor, like the two before it, cannot support denying Lefemine
his attorneys’ fees.
The relief Lefemine obtained is notably broader than the
district court acknowledged.

Significantly, Lefemine obtained

two of the remedies he sought: an injunction and a declaratory
judgment against

multiple

defendants.

Additionally,

although

the district court characterized the injunction as “extremely
limited[,]”

Lefemine,

2013

WL

1499152,

at

*7,

it

bars

Defendants from future restrictions of Lefemine’s graphic signs
“without

narrowly

tailoring

compelling state interest.”

[the]

restrictions

to

serve

a

Lefemine, 732 F. Supp. 2d at 627.

Particularly in light of Defendants’ position that, faced with
the same circumstances again, the Sheriff’s Office would respond
“in exactly the same manner: order the person(s) to stop or face
criminal

sanctions[,]”

J.A.

225,

hardly de minimis.

17

the

injunction’s

impact

is

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Moreover, while the district court accurately noted that
Lefemine

“was

able

to

conduct

incident,”

Lefemine,

2013

WL

Defendants

had

yet

two

further

not

other

protests

at

the

1499152,

*7,

violated

without

fact

Lefemine’s

that
First

Amendment rights is of little moment.

Defendants previously

maintained

a

exactly

that

the

they

same

would

way

respond

as

they

to

future

originally

protest

responded:

in
by

“order[ing] the person(s) to stop or face criminal sanctions.”
Lefemine, 732 F. Supp. 2d at 619 (quotation marks and citation
omitted).

The injunction bars that response.

The fact that

Lefemine appealed to this Court and then to the Supreme Court
and won only further underscores that the significance of his
case

is

not

as

“minimal”

as

the

district

court

portrayed.

Lefemine, 2013 WL 1499152, at *7.
In downplaying the relief Lefemine achieved, the district
court looked to Mercer, 401 F.3d 199, which, in turn, looked to
Farrar v. Hobby, 506 U.S. 103 (1992).

Farrar, in which the

Supreme Court affirmed the denial of attorneys’ fees based on
the

limited

nature

of

the

plaintiff’s

instructive contrast to this case.

relief,

provides

an

In Farrar, the plaintiff

sought $17 million in compensatory damages, alleging violations
of

his

right

to

due

process.

506

U.S.

plaintiff was awarded only nominal damages.

at

106.

Yet

Id. at 107.

the
The

Supreme Court held that “[w]hen a [prevailing party] recovers
18

Appeal: 13-1629

only

Doc: 34

nominal

Filed: 07/11/2014

damages

because

Pg: 19 of 20

of

his

failure

to

prove

an

essential element of his claim for monetary relief, the only
reasonable fee is usually no fee at all.”

Id. at 115 (citation

omitted).
In

contrast

elements

to

required

Farrar,

to

Lefemine

secure

the

successfully

relief

injunction and a declaratory judgment.

he

proved

sought—namely,

the
an

And, for the reasons

discussed above, Lefemine could not have obtained money damages
against the Defendants for reasons related not to the merits of
his case, but rather to the special governmental immunities and
defenses that weigh in favor of awarding fees.

Accordingly,

neither Mercer nor Farrar supports denying attorneys’ fees here.
In

sum,

Lefemine

obtained

nearly

all

of

the

relief

he

sought—namely, declaratory and injunctive relief protecting his
First Amendment rights.
that

the

“limited

And the district court erred in holding

nature

of

relief

granted”

special circumstance making a fee award unjust.

constituted

a

Lefemine, 2013

WL 1499152, at *7.

III.
Today, we hold that qualified immunity, the absence of a
policy or custom of discrimination, and the nature of the relief
granted here—whether considered individually or together through
a “totality of the circumstances” lens—cannot support the denial
19

Appeal: 13-1629

of

Doc: 34

attorneys’

plaintiff.
district

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fees

to

Pg: 20 of 20

Lefemine,

a

prevailing

civil

rights

By denying Lefemine his fees on those bases, the
court

abused

its

discretion,

and,

accordingly,

is

reversed.
Consequently, we remand this matter to the district court
with instructions to allow Lefemine to make a fee application
and for an ensuing determination of the reasonable fee award for
Lefemine’s successful prosecution of this civil rights matter,
including “the time spent defending entitlement to attorney’s
fees . . . .” 4

Mercer, 401 F.3d at 202 n.3 (quotation marks and

citation omitted).
REVERSED AND REMANDED

4

“[T]he critical focus in calculating a reasonable
attorney’s fee is in determining the lodestar figure[,]” i.e.,
“[a] fee based upon reasonable rates and hours[.]”
Daly v.
Hill, 790 F.2d 1071, 1078 (4th Cir. 1986). Indeed, “[a] proper
computation of the lodestar fee will, in the great majority of
cases, constitute the ‘reasonable fee’ contemplated by [Section]
1988.” Id.
20