SW Bell Telephone Co v. City of El Paso

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-50825
SOUTHWESTERN BELL TELEPHONE COMPANY,
Plaintiff-Appellant,
versus
CITY OF EL PASO; ET AL,
Defendants,
EL PASO COUNTY WATER IMPROVEMENT DISTRICT NO. 1,
Defendant-Appellee.
No. 02-50899
SOUTHWESTERN BELL TELEPHONE COMPANY,
Plaintiff-Appellee,
versus
CITY OF EL PASO; ET AL,
Defendants,
EL PASO COUNTY WATER IMPROVEMENT DISTRICT NO. 1,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Texas
Before JOLLY, HIGGINBOTHAM, and STEWART, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Southwestern Bell Telephone Co. (“SWBT”) brought a suit under
42 U.S.C. § 1983 for declaratory and injunctive relief against the
City of El Paso and El Paso County Water Improvement District No.
1 (“EPCWID”), claiming that EPCWID’s application process and fees
for the use of its facilities constituted an illegal taking in
violation of the Fifth Amendment as well as the Contract Clause of
the Constitution, and a violation of the Federal Telecommunications
Act of 1996 (“FTA”).1 SWBT also alleged that EPCWID’s actions
violated state law, particularly Texas Utility Code § 181.082. The
district court granted summary judgment in favor of SWBT, but
denied its request for attorney’s fees pursuant to 42 U.S.C. §
1988. We affirm the grant of summary judgment in favor of SWBT,
but reverse the district court’s denial of attorney’s fees. We
therefore remand the case to the district court for a determination
of reasonable attorney’s fees pursuant to § 1988.
I.
SWBT is a provider of telecommunications services and holds a
certificate of convenience and necessity issued by the Public
Utility Commission of Texas (“PUC”). EPCWID is a water district
operating under Article XVI, Section 59, of the Texas Constitution.
At the center of the controversy between SWBT and EPCWID is a
1
47 U.S.C. §§ 151, et seq. The City and SWBT have settled
their claims, leaving only EPCWID in the case.
2
series of irrigation canals, laterals and ditches deeded from the
United States Bureau of Reclamation to EPCWID in January 1996.
Development in the area of EPCWID’s facilities has resulted in a
number of roads being built across the facilities and has also
resulted in an increase in the demand for telephone services.
EPCWID established application procedures for entities wanting
to cross its facilities, including the completion of an
application, payment of an application fee of $500, and the
obtaining of a survey at the applicant’s expense. Before the
survey is ordered, EPCWID’s Board of Directors must preliminarily
approve the application. After the survey is completed, if the
application is approved, the Board assesses an ad hoc charge for
the crossing, based on the length of the crossing to be used and
the nature of the applicant.
SWBT has placed its lines and cables across EPCWID’s
facilities without submitting to EPCWID’s application process. The
current dispute arose when SWBT began laying a new fiber optic
cable along Texas State Highway 20, crossing one of EPCWID’s
facilities. EPCWID threatened to arrest the line crews for
trespass and remove the cables there and elsewhere if SWBT did not
comply with EPCWID’s application process and pay a fee for use of
EPCWID’s facilities.
SWBT sought declaratory relief against EPCWID, arguing that
(1) EPCWID’s application fees violate the FTA and state law; (2)
roads and highways crossing EPCWID’s ditches, laterals, and canals
3
are public roadways; (3) EPCWID has no right to charge for
telephone lines crossing its canals, ditches and laterals when
those lines are within the rights-of-ways of public roadways; (4)
the water flowing through EPCWID’s canals and ditches is public;
and (5) EPCWID has no right to charge for telephone lines crossing
public waters. EPCWID filed a counterclaim, alleging that SWBT has
trespassed on its property.
EPCWID and SWBT moved for summary judgment, and EPCWID
requested leave to file a second amended counterclaim. The
district court denied EPCWID’s motion for leave to amend.
Following a stay for an interlocutory appeal of EPCWID’s Eleventh
Amendment defense,2 the district court granted summary judgment in
favor of SWBT and denied EPCWID’s motion for summary judgment on
its counterclaims. Following entry of judgment, SWBT filed a
motion for attorney’s fees and EPCWID moved to alter or amend the
judgment. The court denied both motions, and SWBT appeals the
denial of attorney’s fees. EPCWID cross-appeals the grant of
summary judgment in favor of SWBT, the denial of its summary
judgment motion, and the denial of its motion to alter or amend the
judgment.
II.
2
EPCWID sought dismissal of SWBT’s claims on the ground that,
as an arm of the State, it was entitled to Eleventh Amendment
immunity. The district court denied the motion to dismiss, and we
affirmed. Southwestern Bell Tel. Co. v. City of El Paso, 243 F.3d
936, 940 (5th Cir. 2001).
4
A.
We begin by addressing EPCWID’s assertion that the district
court abused its discretion by not giving the parties ten days
notice prior to taking the summary judgment motions under
consideration, a notice it argues is required by Rule 56(c)3.
We rejected that argument in Jackson v. Widnall.4 There we
stated:
Rule 56(c) merely requires the court to give the
non-movant an adequate opportunity to respond prior to a
ruling. We have previously rejected [this] very
argument, noting that rule 56(c) requires neither an oral
hearing nor advance notice of a “date certain” on which
a motion for summary judgment is to be decided; instead,
“if there is not a hearing, the adverse party must have
at least ten days to respond to the motion for summary
judgment.”5
The local rules of the Western District of Texas, the ones at issue
here, satisfy the notice requirements of Rule 56(c) by requiring
that a response to a summary judgment motion be filed within a
specified period of time.6 Here, EPCWID filed a response, which it
3
Fed. R. Civ. P. 56(c) provides in part, “The motion shall be
served at least 10 days before the time fixed for the hearing. The
adverse party prior to the day of hearing may serve opposing
affidavits.”
4
99 F.3d 710, 713 (5th Cir. 1996).
5
Id. (quoting Daniels v. Morris, 746 F.2d 271, 274-75 (5th
Cir. 1984)).
6
Rodriguez v. Pacificare of Tex., Inc., 980 F.2d 1014, 1020
(5th Cir. 1993); see also W.D. Tex. R. CV-7(e) and (g) (requiring
a response to a motion to be filed within eleven days, and
providing that oral argument is at the sole discretion of the
court).
5
had ample opportunity to supplement before the court ruled. The
court delayed consideration of the motions, but there is no
evidence that it lulled EPCWID into prejudicial inaction, and this
delay is not enough to warrant a finding of an abuse of
discretion.7
B.
We next turn to EPCWID’s assertion that the district court
abused its discretion in refusing to allow EPCWID to amend its
pleadings for a third time to include additional counterclaims
including breach of contract. The district court found undue delay
on the part of EPCWID, noting “discovery has closed, the deadline
provided in the scheduling order for amending pleadings has passed,
and this case is set for trial on August 14. Additionally,
[EPCWID] has twice previously amended its answer. Finally, the
raising of new counterclaims at this late date would prejudice
[SWBT].”
We review the district court’s denial of leave to amend for
abuse of discretion.8 We recently stated that:
7
See Daniels, 746 F.2d at 275-76 (stating that, “[w]hen, as
here, the parties have been given ample opportunity to respond to
the motion for summary judgment, the district judge may rule on it
even after a significant delay, without giving the parties advance
notice,” and distinguishing cases where the court induced the
parties into thinking the case was going to trial from those where
the court merely waited to consider the motion (emphasis added)).
8
S & W Enters., LLC v. Southtrust Bank of Ala., NA, 315 F.3d
533, 535 (5th Cir. 2003).
6
Federal Rule of Civil Procedure 16(b) governs amendment
of pleadings once a scheduling order has been issued by
the district court. Rule 16(b) provides that a
scheduling order “shall not be modified except upon a
showing of good cause and by leave of the district
judge.” The good cause standard requires the “party
seeking relief to show that the deadlines cannot
reasonably be met despite the diligence of the party
needing the extension.”9
Thus, EPCWID must show good cause for not meeting the deadline
before the more liberal standard of Rule 15(a) will apply to the
district court’s denial of leave to amend.10
In determining good cause, we consider four factors: “(1) the
explanation for the failure to timely move for leave to amend; (2)
the importance of the amendment; (3) potential prejudice in
allowing the amendment; and (4) the availability of a continuance
to cure such prejudice.”11 The district court previously extended
the deadline and allowed EPCWID to twice amend its pleadings to add
counterclaims. EPCWID was aware of the contract that forms the
basis of its proposed amendment months in advance of the deadline
and does not offer a satisfactory explanation for its delay in
seeking leave to amend. When combined with the prejudice to SWBT
in allowing untimely additional counterclaims, and the likely
failure of the proposed counterclaims on the merits, we find that
9
Id. (quoting 6A Charles Alan Wright et al., Federal Practice
and Procedure § 1522.1 (2d ed. 1990)).
10
Id. at 536.
11
Id. (internal quotation marks omitted).
7
the court did not abuse its “broad discretion to preserve the
integrity and purpose of the pretrial order.”12
C.
EPCWID asserts that the district court erred in granting
SWBT’s motion for summary judgment. Summary judgment is
appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.”13 We review a grant of summary judgment de novo,
applying the same standards as did the district court.14
SWBT moved for summary judgment, relying on both state and
federal law, and requested that the district court declare
Southwestern Bell’s right under Texas and federal law to
use the roads and cross the waters controlled by EPCWID.
Further, the Court should also declare that EPCWID has no
authority under the Texas Water Code or the Texas
constitution provision to which it owes its existence to
charge the general public for crossing over its
waters....
We begin by considering SWBT’s argument that Texas Utilities
Code § 181.082 authorizes SWBT to cross EPCWID’s facilities without
submitting to EPCWID’s application process and paying EPCWID a fee
for the crossing. Section 181.082 reads: “A telephone or telegraph
12
Id. at 535 (internal quotation marks omitted).
13
Fed. R. Civ. P. 56(c).
14
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir.
1998).
8
corporation may install a facility of the corporation along, on, or
across a public road, a public street, or public water in a manner
that does not inconvenience the public in the use of the road,
street, or water.”15
At the outset, we find no merit in EPCWID’s contention that
the word “public” makes the statute unconstitutionally vague. The
statute has been applied in various forms by Texas courts since it
was first enacted in 1874, and it is not the case that more than
one-hundred years of pronouncements from the state courts have left
it unconstitutionally vague.
EPCWID argued to the trial court that § 181.082 does not apply
because none of the roads crossing its facilities are public roads.
EPCWID reasoned that the roads were constructed across its
facilities when they were controlled by the United States
government pursuant to a fifty-year license agreement between the
United States and the City of El Paso. That agreement did not
dedicate the land for public use, and therefore EPCWID contends
that although the roads are used by the public on a daily basis,
they are not “public” within the meaning of § 181.082.
We will address this contention only briefly, as did EPCWID.
The streets of El Paso, as well as the other roads within the
district constructed by the various governments for public use, are
“public” within the meaning of § 181.082, even where they cross
15
Tex. Util. Code Ann. § 181.082 (Vernon 2003).
9
over EPCWID’s facilities. Whether EPCWID has the power to remove
the crossings at the expiration of the lease is irrelevant. The
roadways are public, and § 181.082 applies.
It is well established in Texas law that § 181.082 and its
predecessor statutes grant telephone companies broad powers to
install their lines within the rights-of-ways of public roads, and
that local governments cannot deny this right.16 EPCWID argues that
even if § 181.082 allows SWBT’s crossings within the rights-of-ways
of public roads, nothing in § 181.082 prohibits EPCWID from
managing its facilities by requiring SWBT to comply with reasonable
regulations and pay a reasonable fee to compensate EPCWID for the
use of its property.
In Harlingen Irrigation District Cameron County No. 1 v.
Caprock Communications Corp., a Texas State appellate court
addressed a similar argument.17 There, Caprock obtained permits
from the Texas Department of Transportation to install underground
fiber-optic cables along several roads that crossed or were
parallel to the irrigation district’s facilities. The irrigation
district insisted that Caprock pay a fee for crossing its property,
16
See Harlingen Irrigation Dist. Cameron County No. 1 v.
Caprock Communications Corp., 49 S.W.3d 520, 531 (Tex. App.--Corpus
Christi 2001, pet. denied); Southwestern Bell Tel. Co. v. Bigler,
563 S.W.2d 851, 853 (Tex. Civ. App.--San Antonio 1978, no writ);
Heldt v. Southwestern Bell Tel. Co., 482 S.W.2d 352, 356 (Tex. Civ.
App.--Corpus Christi 1972, no writ); City of Brownwood v. Brown
Tel. & Tel. Co., 157 S.W. 1163, 1165 (Tex. 1913).
17
49 S.W.3d 520.
10
and institute additional measures to minimize the impact the cable
would have on its operations.18 The court rejected the irrigation
district’s argument that § 181.082 did not apply because the
easements granted to the county were limited to construction and
maintenance of a road, not the installation of utilities. The
court stated that the grant of a right-of-way for roadway purposes
“includes the attendant public purposes of transportation of
persons and property, communication, and travel. Roadway easements
include the use of the subsurface for sewers, pipelines and other
methods of transmission and communication that serve the public
interest.”19 The Caprock court concluded that § 181.082 applied,20
and that any restriction on the Department of Transportation’s
ability to permit the use of the roads for installation of
communications facilities “interferes with the state’s freedom to
devote the roadways to the wants and convenience of the public”:21
The public policy favoring the use of public roads for
communications facilities is as relevant today as it was
in the early part of the twentieth century. The
construction of new housing and new roads requires the
construction of new telephone lines. Roads serving the
public in areas of growth will inevitably cross stretches
of property owned, or held by easement, by a variety of
public utilities and entities similar to HID. If each of
these utilities is able to impose restrictions on the
18
Id. at 524.
19
Id. at 527 (citations omitted).
20
Id. at 531.
21
Id. at 532.
11
construction of facilities along public roads, the
extension of telephone service to areas of new
construction would be greatly hampered. This is contrary
to the policy of encouraging access to means of
communication, such as telephone service.22
We find this reasoning persuasive, and agree that it is contrary to
the policy of § 181.082 to allow EPCWID to regulate or charge a fee
for SWBT’s facilities that are within the rights-of-ways of public
roads.
D.
The district court also held that in the alternative, the
waters within EPCWID’s facilities are public waters, and thus SWBT
was entitled pursuant to § 181.082 to install its cables across and
along them. EPCWID argues that this holding is in error, first,
because the waters are not public, and second, because the district
court failed to address EPCWID’s claim that it can place reasonable
restrictions on the use of its property and charge a reasonable fee
for such use. This alternative basis is in fact much broader than
simply allowing SWBT to utilize the rights-of-ways of public roads
to cross EPCWID’s facilities since it would allow SWBT to cross
EPCWID’s property at any point. Given that the summary judgment
evidence before the court concerns only cables laid within the
22
Id. at 533 (citing City of Brownwood v. Brown Tel. & Tel.
Co., 157 S.W. 1163, 1165 (Tex. 1913); Roaring Springs Town-Site Co.
v. Paducah Tel. Co., 212 S.W. 147, 149 (Tex. 1919); Southwestern
Bell Tel. Co. v. Bigler, 563 S.W.2d 851, 853 (Tex. Civ. App.--San
Antonio 1978, no writ)).
12
rights-of-ways of public roads,23 and the fact that there is no
guidance from the state courts on this difficult issue, we decline
to address this alternative basis to sustain the summary judgment.
Because state law provides an adequate basis for deciding the
issue, we also decline to consider SWBT’s contention that the
Federal Telecommunications Act,24 prohibits EPCWID’s actions, or
that EPCWID’s actions violate SWBT’s property and contract rights
under the United States Constitution.25
E.
EPCWID also argues that the district court erred in denying
its motion to alter or amend the judgment based on the denial of
permission to file an amended pleading. Because the district court
did not abuse its discretion in denying leave to amend to add the
23
The district court stated that the parties seemed to be in
agreement that the cables were installed along roadways constructed
or maintained by city or state governments for public use. SWBT’s
amended complaint describes the dispute as arising out of a
crossing within the right-of-way of Texas Highway 20. EPCWID’s
summary judgment evidence does not indicate where the cables are
installed, stating only that SWBT has “made use of the rights-of-
ways of EPCWID.”
24
47 U.S.C. § 253(a) and (c).
25
EPCWID also contends that the district court erred in
rejecting its contention that SWBT was liable for trespass on
EPCWID’s property. SWBT’s entry onto EPCWID’s property is
authorized by § 181.082 where it is within the right-of-way of a
public road. EPCWID has presented no evidence of entry onto its
property other than an affidavit which states that SWBT has “made
use of the rights-of-ways of EPCWID.” This is not evidence of
unauthorized entry, and therefore there is no evidence of trespass.
See Nugent v. Pilgrim’s Pride Corp., 30 S.W.3d 562, 575 (Tex. App.-
-Texarkana 2000, pet. denied) (stating that trespass is the
unauthorized and intentional entry upon land).
13
counterclaim for breach of contract, the district court did not
abuse its discretion in refusing to amend the judgment based on the
counterclaim which was not before the court.26
III.
The final issue is SWBT’s claim that the district court erred
in denying its motion for attorney’s fees under 42 U.S.C. § 1988or, alternatively, Texas Civil Practice and Remedies Code § 37.009
based on SWBT’s successful Texas state-law claims for declaratory
relief. We review a denial of attorney’s fees for abuse of
discretion.27 The district court’s underlying findings of fact are
subject to review for clear error and its conclusions of law are
reviewed de novo.28
The district court denied SWBT’s motion for attorney’s fees
pursuant to § 198829 because “[SWBT] was not granted any relief
pursuant to 42 U.S.C. § 1983 in the Court’s [summary judgment]
order and judgment. Therefore, the Court finds that attorney’s
26
See S. Constructors Group, Inc. v. Dynalectric Co., 2 F.3d
606, 611 (5th Cir. 1993) (stating that abuse of discretion standard
applies).
27
See Dean v. Riser, 240 F.3d 505, 507 (5th Cir. 2001);
Auclair v. Sher, 63 F.3d 407, 410 (5th Cir. 1995).
28
Id.29
42 U.S.C. § 1988 provides in relevant part: “In any action
or proceeding to enforce a provision of [section 1983], the court,
in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of the
costs....”
14
fees are not warranted....” The district court accepted the
contention that because SWBT prevailed on its state law claims, it
was not the prevailing party under §§ 1983 and 1988. This view is
supported by logic, but not our case law.
In Scham v. District Courts Trying Criminal Cases, a criminal
defense attorney, challenged a state court order prohibiting the
Harris County district court and sheriff from disclosing the street
addresses or telephone numbers of criminal defendants until the
defendant retained counsel.30 Scham sued under § 1983, alleging a
violation of his First and Fourteenth Amendment rights, and sought
an injunction prohibiting enforcement of the order. He also
brought a supplemental state law claim for violation of the Texas
Open Records Act.31
The district court granted summary judgment in favor of Scham,
holding that the defendants did not have authority under Texas
state law to issue the order, and specifically avoided ruling on
Scham’s § 1983 claims.32 Scham sought attorney’s fees pursuant to
§ 1988, which the district court denied, and Scham appealed.33 The
appellees argued that because the district court granted summary
judgment on a narrow state law ground, Scham did not succeed on any
30
148 F.3d 554, 556 (5th Cir. 1998).
31
Id.32
Id.33
Id.15
federal claim and therefore was not a prevailing party for the
purposes of § 1988.34 We rejected this argument, stating, “we have
previously held that a plaintiff may be deemed a prevailing party
if he prevails on a supplemental state law claim which arises from
a common nucleus of fact with his federal constitutional claims, if
the court chooses to avoid ruling on the constitutional issues.”35
In Williams v. Thomas, a county jail inmate sued under § 1983,
alleging that deputies imposed cruel and unusual punishment upon
him and deprived him of his liberty without due process of law by
grabbing him and slamming him against the wall and floor of the
Dallas County jail.36 In an amended complaint, Williams added a
state assault and battery action pursuant to the court’s
supplemental jurisdiction, and sought recovery of attorney’s fees
under § 1988. 37 The district court entered judgment based on the
state law claims. We affirmed Williams’ recovery of damages under
the state law claims, and did not address the alleged errors
regarding the denial of a “good faith” defense to the § 1983
claims.38 We then affirmed the district court’s grant of attorney’s
fees pursuant to § 1988, stating:
34
Id. at 557.
35
Id. (citing Williams v. Thomas, 692 F.2d 1032, 1036 (5th
Cir. 1982)).
36
692 F.2d at 1033.
37
Id.38
Id. at 1035.
16
In Maher v. Gagne, [448 U.S. 122 (1980)], the Supreme
Court intimated that a party prevailing on a substantial
claim that is pendent to a civil rights claim is entitled
to a recovery of attorney’s fees when the civil rights
claim and the pendent claim arise out of a common nucleus
of operative facts. This Circuit, along with other
circuits, has followed the Supreme Court’s direction.
These cases demonstrate that the federal courts are
aware of the fact that often a court will affirm a
judgment on a pendent, noncivil rights claim when to do
so will allow it to avoid an unnecessary decision on a
difficult constitutional issue.39
Thus, under our precedent attorney’s fees may be awarded even
if the § 1983 claim is not decided, “provided that 1) the § 1983
claim of constitutional deprivation was substantial; and 2) the
successful pendant claims arose out of a ‘common nucleus of
operative facts.’”40 A claim is substantial if it supports federal
question jurisdiction, and the “common nucleus of operative facts”
element must satisfy the test established in United Mine Workers v.
Gibbs for pendent jurisdiction.41
39
Id. at 1036 (citing Gibbs v. Town of Frisco City, Ala., 626
F.2d 1218 (5th Cir. 1980); Lund v. Affleck, 587 F.2d 75, 76-77 (1st
Cir. 1978); Seals v. Quarterly County Court, 562 F.2d 390, 393-94
(6th Cir. 1977); Bond v. Stanton, 555 F.2d 172, 174 (7th Cir.
1977); Kimbrough v. Ark. Activities Ass’n, 574 F.2d 423, 426 (8th
Cir. 1978) (citations omitted)). Since deciding Williams, we have
cited its holding numerous times. See, e.g., Scham v. District
Courts Trying Criminal Cases, 148 F.3d 554, 557 (5th Cir. 1998);
Rodriguez v. Handy, 873 F.2d 814, 817 (5th Cir. 1989); Heath v.
Brown, 807 F.2d 1229, 1233 (5th Cir. 1987); McDonald v. Doe, 748
F.2d 1055, 1057 (5th Cir. 1984); Espino v. Besteiro, 708 F.2d 1002,
1010 (5th Cir. 1983).
40
Rodriguez, 873 F.2d at 817 (quoting Williams, 692 F.2d at
1036).
41
See Espino v. Besteiro, 708 F.2d 1002, 1009-10 (5th Cir.
1983) (citing United Mine Workers v. Gibbs, 383 U.S. 715 (1966)).
17
SWBT grounded its § 1983 claim on a violation of the Federal
Telecommunications Act and violations of the Takings and Contracts
Clauses of the United States Constitution. We here affirm the
grant of summary judgment based on state law, declining to decide
whether EPCWID’s practices also violate federal law under § 1983.
To qualify as a prevailing party, “the plaintiff must (1) obtain
actual relief, such as an enforceable judgment or a consent decree;
(2) that materially alters the legal relationship between the
parties; and (3) modifies the defendant’s behavior in a way that
directly benefits the plaintiff at the time of the judgment or
settlement.”42 SWBT is the prevailing party. It is also clear that
SWBT prevailed under § 1983, since SWBT stated a § 1983 claim
substantial enough to support federal question jurisdiction,43 and
the state law claims arise out of the same facts as the § 1983
claims.
EPCWID argues that a violation of the FTA cannot be the basis
for a § 1983 action, and therefore SWBT did not prevail under §
42
Walker v. City of Mesquite, 313 F.3d 246, 249 (5th Cir.
2002) (citing Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)).
43
We have stated that “[t]he substantiality test merely
requires that the issue raised in the fee claim not be ‘wholly
insubstantial,’ ‘obviously frivolous,’ ‘plainly insubstantial’ or
‘obviously without merit.’” Espino v. Besteiro, 708 F.2d 1002,
1010 (5th Cir. 1983) (quoting Hagans v. Levine, 415 U.S. 528, 537
(1974)).
18
1983.44 We need not decide whether the FTA supports a claim under
§ 1983 to find that SWBT was a prevailing party for the purposes of
§ 1988. Our precedent is clear that if SWBT states a § 1983 claim
based on the alleged violation of constitutional rights that
supports federal question jurisdiction, that is sufficient to
support the award of attorney’s fees, even if the constitutional
claim is avoided by the court. It is not necessary for SWBT to
prevail on the constitutional claim.45 Because we find that SWBT
is eligible for attorney’s fees under § 1988, we do not address
SWBT’s alternative basis for fees under Texas law.
IV.
We AFFIRM in part, REVERSE in part, and REMAND, for a
determination of reasonable attorney’s fees pursuant to § 1988.
44
Compare, e.g., AT&T Wireless PCS, Inc. v. City of Atlanta,
210 F.3d 1324-30 (11th Cir. 2000) (finding a remedy under § 1983
for a violation of the plaintiff’s rights under the FTA), vacated
for lack of jurisdiction, 223 F.3d 1324 (11th Cir. 2000),
reinstated, 250 F.3d 1307 (11th Cir. 2001), and appeal dismissed on
settlement, 264 F.3d 1314 (11th Cir. 2001); Omnipoint Holdings,
Inc. v. Town of Westford, 206 F. Supp. 2d 166, 173-74 (D. Mass.
2002) (same), with, e.g., Nextel Partners Inc. v. Kingston
Township, 286 F.3d 687, 693-96 (3d Cir. 2002) (holding that an
alleged violation of FTA does not provide a basis for a § 1983
claim).
45
See McDonald v. Doe, 748 F.2d 1055, 1056 (5th Cir. 1984);
Espino, 708 F.2d at 1009-10. We do not decide whether prevailing
under a state law supplemental claim would support an award of
attorney’s fees under § 1988 if the § 1983 claim sought only
enforcement of a federal statute.
19