(caption unavailable)

*District Judge of the Eastern District of Louisiana sitting by
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-1802
__________________
FW/PBS, INC., d/b/a PARIS
ADULT BOOKSTORE, II, ET AL.,
Plaintiffs-Appellants,
versus
THE CITY OF DALLAS, ET AL.,
Defendants-Appellees.
* * * * * * * *
JOHN RANDALL DUMAS, d/b/a
GENO'S,
Plaintiffs,
TEMPO TAMERS, INC., d/b/a
MILLION DOLLAR SALOON, ET AL.,
Plaintiffs-Appellants,
versus
CITY OF DALLAS, Etc.,
Defendant-Appellee.
______________________________________________
Appeals from the United States District Court for the
Northern District of Texas
(CA-3-86-R c/w CA-3-86-1901 & CA-3-86-1915)
______________________________________________
(October 7, 1994)
Before GARWOOD and DeMOSS, Circuit Judges, and DUPLANTIER,*

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designation.
** Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
2
District Judge.
GARWOOD, Circuit Judge:**
Three groups of operators of sexually oriented businesses in
Dallas brought First Amendment challenges against an ordinance
regulating their businesses. They achieved partial success in the
district court and before the Supreme Court, which on both
occasions compelled the city to amend the ordinance. On remand to
the district court, both sides agreed that the plaintiffs' claims
for declaratory and injunctive relief were moot, but two of the
groups of plaintiffs resisted dismissal on the ground that they
were entitled to attorneys' fees, and one of them also sought
monetary damages. The district court granted summary judgment
against them, concluding that they were not "prevailing parties"
under 42 U.S.C. § 1988 and that they had failed to demonstrate
their entitlement to monetary damages. We affirm in part and
reverse and remand in part.
Facts and Prior Proceedings
In June 1986, the City of Dallas (the City) enacted an
ordinance regulating the licensing, zoning, and operation of
sexually oriented businesses. The ordinance contained three
general categories of provisions: (1) provisions requiring that a
person wishing to operate a sexually oriented business apply for

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3
and obtain a license from the chief of police, setting out the
conditions under which the chief of police would approve the
issuance of a license, and authorizing the suspension or revocation
of a license under certain circumstances (licensing provisions);
(2) provisions prohibiting the operation of a sexually oriented
business within 1,000 feet of a church, an elementary or secondary
school, a residential district, a public park, or another sexually
oriented business (zoning provisions); and (3) provisions governing
the lighting and physical layout of businesses that exhibited films
or videos (configuration provisions). The ordinance also contained
some special restrictions applicable to escort agencies, nude
modeling studios, and adult motels.
Within a month, three lawsuits challenging the ordinance were
filed in the Northern District of Texas by adversely affected
businesses. One was brought by a group of businesses engaged in
the sale and/or exhibition of adult books and videotapes (bookstore
plaintiffs) (FW/PBS, Inc., et al. v. City of Dallas, et al.),
another by operators of businesses featuring live performances
(cabaret plaintiffs) (Dumas d/b/a Geno's, et al. v. City of Dallas,
et al.), and the third by owners of adult motels (motel plaintiffs)
(Berry, et al. v. City of Dallas, et al.). The suits challenged
the constitutionality of all aspects of the ordinance and sought
declaratory and injunctive relief and attorneys' fees. The cases
were consolidated in the district court on August 4, 1986.
Addressing the claims on cross-motions for summary judgment,
the district court on September 12, 1986, held the ordinance to be
in accordance with the First Amendment except for four aspects of

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4
the licensing scheme. Dumas v. City of Dallas, 648 F.Supp. 1061
(N.D. Tex. 1986). Section 41a-5(a) of the ordinance provided that
the police chief was to approve issuance of a license to an
applicant unless he found one of ten listed conditions to exist.
The district court disapproved of the eighth condition in that list
(section 41a-5(a)(8)), which was that an applicant "has been
employed in a sexually oriented business in a managerial capacity
within the preceding 12 months and has demonstrated that he is
unable to operate or manage a sexually oriented business premises
in a peaceful and law-abiding manner." In calling for judgments of
what constituted a "peaceful manner" and whether the applicant was
"unable" to so operate his business, the court held, this provision
lacked the type of "standards 'susceptible of objective
measurement'" required by Keyishian v. Board of Regents, 87 S.Ct.
675, 684 (1967). Dumas, 648 F. Supp. at 1072. The other three
defects identified by the district court all related to the tenth
condition in the list (section 41A-5(a)(10)), the civil disability
provision. This provision disqualified persons, and spouses of
persons, who had been convicted of, or were under indictment or
misdemeanor information for, specified crimes within a particular
period in the past (either two or five years, depending on the
severity of the offense). First, the court disapproved of the
ordinance's scheme under which even an applicant whose prior
conviction was more than the requisite number of years in the past
could be granted a license only if the police chief determined that
he was "presently fit to operate a sexually oriented business"
(emphasis added). This provision also lacked the objective

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5
standards required by Keyishian, the court held. Id. Second, the
district court found that five of the some nineteen convictions
enumerated in section 41A-5(a)(10)SQcontrolled substances act
violations, bribery, robbery, kidnapping, and organized criminal
activitySQwere not supported by findings showing that they were
sufficiently related to the purpose of the ordinance. Id. at 1074.
Finally, the district court struck down the requirement of the
civil disability section that the police chief deny a license to an
applicant who was under indictment or misdemeanor information; the
court held that denying a license merely on the basis of an
indictment or information, which is not evidence of guilt, was an
overbroad preventive that could be replaced by a less restrictive
provision. Id. at 1074-75.
The district court rejected the plaintiffs' contention that
the licensing scheme lacked the procedural safeguards required by
Freedman v. Maryland, 85 S.Ct. 734 (1965). Freedman held that a
state law requiring submission of movies to a censorship board
prior to public exhibition could comport with the First Amendment
only if (1) the burden of proving that the film was unprotected
expression was placed on the censor; (2) the censor was obligated,
either by statute or authoritative judicial decision, to obtain a
judicial determination in order to impose a valid final restraint,
and could prior to such a determination impose only a brief
restraint preserving the status quo; and (3) the procedure of
administering the law assured a prompt final judicial decision.
Id. at 739. The plaintiffs in this case argued that although the
City's ordinance provided for an appeal from the police chief's

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1 To the subsection directing denial of a license to an
applicant who had demonstrated that he was unable to manage a
sexually oriented business in a "peaceful and law-abiding
manner," the amendments added the phrase "thus necessitating
action by law enforcement officers." The amendments deleted the
provision permitting denial of a license based on a prior
conviction even after the requisite length of time if the police
chief determined the applicant was not "presently fit." The
convictions that had not been shown to be related to the purpose
of the ordinance (kidnapping, bribery, etc.) were stricken from
the list in the civil disability provision. Finally, the amended
ordinance permitted a license to be denied on the grounds of a
past offense only if there had been an actual conviction for the
offense.
6
decision to a license and permit appeal board, it did not place
upon the police chief the burden of promptly initiating judicial
proceedings, did not contain any assurance that interim restraints
pending a judicial determination would be brief, and did not
guarantee swift final judicial action. The district court held
simply that applicants were legally entitled to seek relief in
court and therefore no express authorization was required. Dumas,
648 F.Supp. at 1075.
Thus, except for the above-mentioned four specific provisions
in the licensing scheme, which the district court described as
"minor exceptions" that were "severable . . . and may be cured by
amendment," the district court found the ordinance to be
constitutional. Id. at 1077. The district court entered judgment
on September 12, 1986, enjoining the City from enforcing those four
subsections but otherwise granting summary judgment against the
plaintiffs. The plaintiffs filed notices of appeal to this Court.
The City did not appeal, and on October 12, 1986, amended or
deleted the four subsections so as to cure the constitutional
defects found by the district court.1

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7
On their appeal to this Court, the plaintiffs reasserted their
wide-ranging attacks on all three aspects of the ordinance. The
bookstore and cabaret plaintiffs challenged the licensing scheme as
an unlawful content-based prior restraint that lacked the necessary
Freedman protections, because it placed the burden of going to
court on the licensee and did not ensure a prompt judicial
determination. They also argued that the licensing officers were
given unconstitutionally broad discretion in deciding to grant,
suspend, or revoke licenses. The cabaret plaintiffs contended that
the $500 annual fee called for by the licensing scheme was invalid
as a tax on protected First Amendment activity. The bookstore and
cabaret plaintiffs also challenged the zoning provisions,
contending that they would force relocation of most businesses and,
by not providing sufficient alternative sites, would result in the
closing of many businesses. The bookstore plaintiffs challenged
the configuration provisions as well. Finally, the cabaret and
motel plaintiffs argued that the ordinance was invalid as to them
because it was not supported by adequate findings showing that
their types of businesses contributed to the problems that the
ordinance sought to address.
This Court rejected all of their arguments and affirmed the
district court's order. FW/PBS, Inc. v. City of Dallas, 837 F.2d
1298 (5th Cir. 1988). On the grounds that the ordinance was not
content-based regulation but rather was primarily aimed at the
secondary effects of sexually oriented business (crime, urban
blight) and that it was regulating commercial enterprises rather
than specific instances of expression (such as, in Freedman,

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2 Because the plaintiffs had never been granted an injunction
against the City's enforcement of the ordinance, it is not clear
what, if any, relief they obtained from the stay of this Court's
mandate.
8
individual movies), we concluded that the Freedman procedural
protections were not required and that both the licensing and
zoning requirements were permissible time, place, and manner
restrictions under City of Renton v. Playtime Theatres, Inc., 106
S.Ct. 925 (1986). FW/PBS, 837 F.2d at 1301-03. We also upheld the
configuration provisions, id. at 1304, rejected the motel
plaintiffs' challenge on the basis that the City's interest was
self-evident and substantial, id., sustained the denial of licenses
to persons convicted of certain crimes because the convictions bore
a substantial relationship to the evil sought to be prevented by
the ordinance, id. at 1305, and concluded that the ordinance did
not give the police chief impermissibly broad discretion in
issuing, suspending, and revoking licenses. Id. at 1305-06.
This Court rejected the plaintiffs' motion to stay issuance of
its mandate on April 5, 1988. On April 20, 1988, however, the
plaintiffs obtained from the Supreme Court a temporary stay of the
judgment and mandate of this Court. On May 6, 1988, the Supreme
Court ordered that this Court's judgment, except for its approval
of the zoning provisions, be stayed pending action on the
plaintiffs' petitions for a writ of certiorari.2 The Supreme Court
granted certiorari on February 27, 1989, only with respect to
issues concerning the licensing provisions and the issue of whether
the City had justified coverage of adult motels.
In a decision dated January 9, 1990, the Supreme Court

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3 Though concluding that the ordinance was invalid for its
failure to provide these two protections, the Court expressly
declined to decide whether the ordinance was properly assessed as
a content-neutral time, place, and manner restriction. Id. at
603. The view that only two of the Freedman protections were
required of a prior restraint incident to a business-licensing
scheme was adopted by three Justices. Three additional Justices
concurred in the judgment on the ground that all three Freedman
protections were necessary. Three Justices voted to affirm this
Court's decision.
9
affirmed in part, reversed in part, vacated in part, and remanded.
FW/PBS, Inc. v. City of Dallas, 110 S.Ct. 596 (1990). With regard
to the Freedman procedural safeguards, the Supreme Court accepted
this Court's reasoning only in part. It held that because the
licensor was not passing judgment on the content of particular
expressive material, but rather was reviewing the general
qualifications of license applicants, applicants would have every
incentive to pursue a license denial through court. Accordingly,
requiring that the licensor have the burden of going to court and
of justifying in court the denial of a license was not necessary.
Id. at 607. However, the Court concluded that the other two
Freedman protectionsSQrequiring that the licensor make a decision
within a specified and reasonable time, and making expeditious
judicial review availableSQremained mandatory, and that the
licensing scheme was unconstitutional because of its failure to
provide these two protections.3 Id. at 606. The Court found that
the former protection was lacking in the ordinance because although
it contained a general requirement that the police chief approve an
application within thirty days of receipt, he did not have to do so
if the premises had not been approved by the health and fire
departments, and the ordinance did not limit the time within which

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4 In his concurrence, Justice Brennan noted that no challenge
to the cohabitation provision had been directly raised by the
parties, and that the issue had not been addressed by this Court
or included among the questions on which certiorari was granted.
Id. at 613 (Brennan, J., concurring in the judgment).
10
such inspections had to occur. Id. at 605. Prior to being raised
in the cabaret plaintiffs' submissions to the Supreme Court, the
time allowed for an initial licensing decision by the police chief
had never been complained of by the plaintiffs in this litigation.
The Court also found that the latter mandatory Freedman protection
was absent, noting simply that the ordinance "fails to provide an
avenue for prompt judicial review." Id. at 606. The Court
remanded for a determination of the extent to which the licensing
scheme was severable from the rest of the ordinance.
Having concluded that the licensing requirement was
unconstitutional because of the lack of these procedural
protections, the Supreme Court did not reach the plaintiffs'
further challenges to it. Id. at 610 n.3. With regard to the
civil disability provision and a provision disqualifying persons
residing with individuals who had previously been denied licenses,
however, the Court noted that it was declining to address the
plaintiffs' arguments because the plaintiffs had not shown that
they had standing to challenge those subsections.4 Id. at 607.
The Court vacated this Court's judgment as it pertained to those
provisions and directed us to dismiss that portion of the suit for
want of standing. Id. at 610. The Court rejected the motel
plaintiffs' arguments that the ordinance could not be applied to
them. Id. at 610-11.

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11
Fifteen days later, on January 24, 1990 (prior to the issuance
of the Supreme Court's mandate on February 8), the City amended the
ordinance in response to the Supreme Court's decision. The City
deleted the requirement that an applicant's business be inspected
and approved by the health and fire departments before a license
could be granted, and added a provision granting a right of appeal
to state district court from an adverse decision by the police
chief, eliminating the provision for appeal to the review board.
In addition, the City modified the ordinance in several respects
not dictated by the Supreme Court's holding: it deleted the
provision disqualifying licensing applicants who resided with
persons who had been denied a license within the previous twelve
months, and it deleted the subsection providing that an applicant
could not be granted a new license within twelve months after the
police chief had denied renewal of an old license, unless after
ninety days the police chief found that the reason for denial had
been remedied.
On February 28, 1990, following receipt of the remand order
from the Supreme Court, this Court remanded the case to the
district court for further proceedings consistent with the Supreme
Court's opinion. On August 3, 1990, the City moved for summary
judgment, arguing that its amendment of the ordinance to comply
with the Supreme Court's decision rendered the controversy moot.
The motion did not mention the matter of attorneys' fees or
specifically address the plaintiffs' entitlement to monetary
damages, though it did pray that "Plaintiffs take nothing."
On August 22, 1990, the bookstore plaintiffs filed a response.

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5 Local Rule 12.2 provides in full:
"Unless otherwise directed by the Presiding Judge,
all requests for attorney's fees which are taxable as
costs in any action shall be filed within 30 days after
judgment has been entered in the action."
12
They conceded that their claims for declaratory and injunctive
relief against the licensing provisions were moot. They further
conceded that their claims for declaratory and injunctive relief
against the zoning provisions of the ordinance, which had not been
addressed by the Supreme Court, were moot based on this Court's
decision and on subsequent amendments to those portions of the
ordinance. However, they argued that they had a claim for damages
under 42 U.S.C. § 1983 for the closure of any of their
establishments caused by the ordinance, and they noted that their
as-yet-unfiled claim for attorneys' fees under 42 U.S.C. § 1988
remained to be determined by the district court. The following
day, the cabaret plaintiffs filed a memorandum to the same effect
regarding attorneys' fees, arguing that the City's request that
plaintiffs "take nothing" should not be interpreted as a request to
deny attorneys' fees. They pointed out that such a request would
be premature, because under Local Rule 12.2 of the Northern
District of Texas, the plaintiffs were required to (and fully
intended to) file a request for attorneys' fees "within 30 days
after judgment has been entered in the action" (emphasis added).5
They requested that if the district court decided to address the
plaintiffs' entitlement to a fee award in the context of the City's
summary judgment motion, the court grant them a continuance under
FED. R. CIV. P. 56(f) to prepare documentation for a fees request.

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13
On September 27, 1990, the district court entered an order
dismissing with prejudice the claims of the third group of
plaintiffs that had been involved in this suit, i.e., the motel
plaintiffs, and ruling that as between the City and the motel
plaintiffs each party should bear its own costs and attorneys'
fees.
On April 17, 1991, the district court granted summary judgment
for the City against the bookstore and cabaret plaintiffs. As
agreed by the parties, the court found all claims for injunctive
and declaratory relief to be moot. It further found, however, that
none of the bookstore plaintiffs had shown that they sustained an
injury as a result of any part of the ordinance held
unconstitutional in the litigation. Therefore, the district court
denied their section 1983 claim for damages. Finally, the district
court held that because the changes in the ordinance made in
response to the court decisions were minor and did not
significantly alter the legal relationship of the parties, the
plaintiffs' success was de minimis and did not entitle them to
recovery of attorneys' fees under section 1988 according to Texas
State Teachers Association v. Garland Independent School District,
109 S.Ct. 1486, 1493 (1989) (Garland). The district court
therefore denied attorneys' fees to both groups of plaintiffs. The
bookstore plaintiffs filed a motion to amend the judgment to allow
them an opportunity to pursue their claims for damages and
attorneys' fees. The district court denied the motion on June 30,
1991. The bookstore and cabaret plaintiffs bring this appeal.

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6 Although the wording of the statute leaves the decision of
whether to award fees to the district court's discretion and
makes no distinction between plaintiffs and defendants, the
Supreme Court in Christiansburg Garment Co. v. Equal Employment
Opportunity Commission, 98 S.Ct. 694 (1978), held that the almost
identically worded 42 U.S.C. § 2000e-5(k) is not party-neutral
and that district courts have little discretion to deny
attorneys' fees when a plaintiff prevails. In Christiansburg
Garment, the Court, applying section 2000e-5(k) (the Title VII
attorneys' fees statute), held that while "in all but special
circumstances" a prevailing plaintiff should be awarded fees, a
losing plaintiff should not be assessed his opponent's fees
"unless a court finds that his claim was frivolous, unreasonable,
or groundless, or that the plaintiff continued to litigate after
it clearly became so." Id. at 698, 701. We have deemed these
separate standards equally applicable to fee awards under section
1988. See Coats v. Pierre, 890 F.2d 728, 733 (5th Cir. 1989),
cert. denied, 111 S.Ct. 70 (1990); Lopez v. Aransas County
Independent School District, 570 F.2d 541, 545 (5th Cir. 1978).
See also Hensley v. Eckerhart, 103 S.Ct. 1933, 1937 & n.2 (1983).
14
Discussion
I. Attorneys' Fees
Section 1988(b) provides that in suits brought under certain
civil rights statutes including section 1983, a district court, "in
its discretion, may allow the prevailing party . . . a reasonable
attorney's fee as part of the costs."6 In Garland, the Supreme
Court clarified the proper test for determining if a fees applicant
is the "prevailing party." The plaintiffs in that case were school
teachers who had brought a section 1983 claim challenging a school
district's policy prohibiting communications by or with teachers
during the school day concerning employee organizations. In a
decision that had been summarily affirmed by the Supreme Court,
this Court had granted the plaintiffs partial relief. It had
rejected their claim that the First Amendment required that the
school district allow union representatives access to school
facilities during school hours, but had found the policy

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15
unconstitutional insofar as it prohibited discussion among teachers
during the school day. In addition, this Court had held that the
prohibition on teacher use of the internal mail and billboard
facilities to discuss employee organizations was unconstitutional.
On the subsequent application for attorneys' fees, this Court
upheld the denial of fees because the plaintiffs had not prevailed
on the central issue of their suitSQunion access to teachers and
school facilities.
The Supreme Court reversed and rejected the "central issue"
test, holding that plaintiffs crossed the threshold of entitlement
to a fee award if they "succeeded on 'any significant issue in
litigation which achieve[d] some of the benefit the parties sought
in bringing suit.'" Garland, 109 S.Ct. at 1493 (quoting Nadeau v.
Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). The Court
indicated that the "floor" for the "prevailing party" standard was
provided by Hewitt v. Helms, 107 S.Ct. 2672 (1987), in which the
Court held that the plaintiff must receive "at least some relief on
the merits" and must be able to point to a resolution that changes
the legal relationship with the defendant. Garland, 109 S.Ct. at
1493. See also id. ("The touchstone of the prevailing party
inquiry must be the material alteration of the legal relationship
of the parties in a manner which Congress sought to promote in the
fee statute."). As an illustration of the type of purely technical
relief that would not suffice, the Court noted that in the Garland
litigation the district court had found the requirement that
meetings during nonschool hours be conducted only with prior
approval from the school principal to be unconstitutionally vague,

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16
but had characterized the issue as of minor significance and had
pointed to no evidence that teachers had ever been denied
permission. If this had been the plaintiffs' only success, the
Court noted, it would not have rendered them prevailing parties.
Id. As things stood, however, the Garland Court had no difficulty
in concluding that the plaintiffs had materially altered the school
district's policy, and that they were prevailing parties. Id. at
1494.
Garland was arguably clarified in Farrar v. Hobby, 113 S.Ct.
566 (1992). There the court held that in a lawsuit in which the
only relief sought was $17 million damages and the only relief
awarded was one dollar in nominal damages, the plaintiff was
nevertheless "a prevailing party under § 1988," id. at 573, because
"[a] judgment for damages in any amount, whether compensatory or
nominal, modifies the defendant's behavior for the plaintiff's
benefit by forcing the defendant to pay an amount of money he
otherwise would not pay" and "the prevailing party inquiry does not
turn on the magnitude of the relief awarded." Id. at 574.
However, Farrar proceeds to hold, over the dissent of four
Justices, that this Court, which had reversed the district court's
award of attorneys' fees, had correctly held that the plaintiff was
entitled to recover no attorneys' fees whatever. The Court
explained that "'the most critical factor' in determining the
reasonableness of a fee award 'is the degree of success obtained.'"
Id. (quoting from Hensley v. Eckerhart, 103 S.Ct. 1933, 1941
(1983)). It went on to state:

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7 We discuss the other 1990 changes to the ordinance infra.
8 Here, the facts relevant to this threshold determination are
essentially undisputed. This is not, for example, a case in
which such a determination turns on the district court's
resolution of factual mattersSQsuch as whether the plaintiff's
suit was the catalyst for the defendant's ameliorative
actionSQthat this Court reviews only for clear error. See, e.g.,
Associated Builders & Contractors of Louisiana, Inc. v. Orleans
17
"In some circumstances, even a plaintiff who formally
'prevails' under § 1988 should receive no attorney's fees
at all. A plaintiff who seeks compensatory damages but
receives no more than nominal damages is often such a
prevailing party. . . . When a plaintiff recovers only
nominal damages because of his failure to prove an
essential element of his claim for monetary relief, see
Carey, supra, at 256-257, 264, 98 S.Ct., at 1048-1049,
1052, the only reasonable fee is usually no fee at all."
Id. at 575.
Justice O'Connor was one of the five votes to affirm this Court in
Farrar. Her concurring opinion there explains Farrar's holding as
follows:
"While Garland may be read as indicating that this de
minimis or technical victory exclusion is a barrier to
prevailing party status, the Court makes clear today
that, in fact, it is part of the determination of what
constitutes a reasonable fee. . . . And even if the
exclusion's location is debatable, its effect is not:
When the plaintiff's success is purely technical or de
minimis, no fees can be awarded. Such a plaintiff either
has failed to achieve victory at all, or has obtained
only a pyrrhic victory for which the reasonable fee is
zero." Id. at 576.
In the present case, there is no question that the plaintiffs'
lawsuit served as the catalyst for the 1986 changes and two of the
1990 changes to the licensing provisions of the City's ordinance.7
The issue is solely whether the changes were significant enough to
constitute more than purely technical or de minimis success so as
to render plaintiffs prevailing parties entitled to recover some
attorneys' fees.8 The plaintiffs do not claim that they prevailed

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Parish School Board, 919 F.2d 374, 378 (5th Cir. 1990).
In concluding in Pierce v. Underwood, 108 S.Ct. 2541 (1988),
that district courts' determinations of the arguably analogous
question of whether the government's position was "substantially
justified" for purposes of the Equal Access to Justice Act (EAJA)
should be reviewed for abuse of discretion, id. at 2546-49, the
Supreme Court relied heavily on two considerations that are
inapplicable here. First, the Court relied on language from the
EAJASQstating that the court must find the position of the
government to be substantially justifiedSQthat is not duplicated
in 42 U.S.C. § 1988. Second, the Court observed that some of the
elements that bear upon whether the government's position was
substantially justified, such as evidentiary issues, may be known
only to the district court. Id. at 2547. In comparison, a
determination of "prevailing party" status and whether there has
been "more than purely technical or de minimis success" such as
the one in this case relies to a greater degree on the parties'
pleadings, motions, and briefs and the courts' orders, which are
equally accessible to an appellate court.
18
on any aspect of their suit other than the challenge to the
licensing provisions, and they do not seek attorneys' fees for work
other than that devoted to licensing issues.
The City contends that the changes to the ordinance were de
minimis and did not materially alter the legal relationship of the
parties; as before the suit, the City is now able to regulate
through licensing the persons who may operate sexually oriented
businesses. The plaintiffs counter by arguing that the Supreme
Court found the entire licensing scheme to be unconstitutional and
unenforceable. At least between the Supreme Court's decision on
January 9, 1990, and the City's amendment of the ordinance on
January 24, 1990, they argue, they had a legal right to operate a
sexually oriented business without a license, and would have been
entitled to an injunction against any efforts by the City to
enforce the ordinance's licensing scheme in any manner. Thus, they
contend, their suit effected a one hundred percent change in the

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19
legal relationship of the parties.
Although the question is a close one, we conclude that both
groups of plaintiffs have crossed the "prevailing party" achieving
more than purely technical or de minimis success threshold,
entitling them to an award of some fee. Their argument that they
would have been entitled to relief in the immediate aftermath of
the Supreme Court's decision, though mistaken in its specifics
because the Supreme Court's mandate did not issue until after the
amendment of the ordinance, is actually stronger than they make it
appear. The Supreme Court's decision that the licensing scheme was
constitutionally defective because of the lack of the Freedman
safeguards necessarily means that it was never valid. The
plaintiffs therefore could not be prosecuted or fined for
violations of the ordinance that occurred at any time before it was
amended on January 24, 1990. Also, we cannot ignore that the
Supreme Court saw fit to address the plaintiffs' claims, a
circumstance that weighs against a finding that the changes brought
about by the suit were so unimportant as to be labeled de minimis.
By forcing the City to amend the ordinance, the plaintiffs did
obtain actual relief. Although the change eliminating the required
health and fire department inspections alone might justly be
characterized as de minimis because it had never before been
identified by the plaintiffs as an objectionable aspect of the
ordinance, the Supreme Court also upheld the plaintiffs' argument
that the statute did not effectively limit the time in which
administrative review of the police chief's decision would be
completed, a matter that the plaintiffs had raisedSQalbeit only

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9 At least, that is how we would interpret the Supreme Court's
holding that the ordinance "fails to provide an avenue for prompt
judicial review," FW/PBS, 110 S.Ct. at 606, based on the
parties' briefs to the Supreme Court. The cabaret plaintiffs
noted in their brief that although the permit and license appeal
board was required to hear an appeal within sixty days, there was
no requirement that it make a final determination within a
specified period thereafter. The bookstore plaintiffs' brief
similarly noted that "no provision is present mandating a prompt
determination of the appeal." Before the district court and this
Court, the plaintiffs had argued, without elaboration, that the
statute lacked a "guarantee of swift final judicial action."
The defect identified by the Supreme Court was cured by the
January 1990 amendment eliminating the administrative appeal
altogether and permitting direct judicial review of the police
chief's decision.
20
cursorily and obliquelySQbefore this Court and the district court.9
We note that in our recent opinion on rehearing in TK's Video,
Inc. v. Denton County, Texas, 24 F.3d 705, on reh'g F.3d
(5th Cir. 1994), we determined that plaintiffs-appellants prevailed
on a significant constitutional issue in their appeal, so as to be
entitled to attorneys' fees for work on appeal. The only issue on
which the TK's Video plaintiffs prevailed in their appeal, which
contained many challenges to a county ordinance establishing a
licensing scheme for "adult" entertainment businesses, was our
ruling that as to a business in operation on the effective date of
the ordinance, the status quo had to be maintained pending a final
administrative decision on a license application. The general
essentials of the ordinance, however, were sustained on appeal in
TK's Video.
Moreover, the plaintiffs here did force four changes to the
ordinance in 1986. Although none of these four changes concerned
a particularly critical component of the overall ordinance, they
did go somewhat beyond the example of technical, de minimis relief

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21
given by the Garland Court, if for no other reason than that the
provisions evidently would have been enforced to the detriment of
the plaintiffs. The district court noted that one plaintiff had
been convicted of robbery, and another of a controlled substances
act violation, Dumas, 648 F. Supp. at 1074 n.35; therefore, under
the ordinance prior to the 1986 amendments they would have been
ineligible for licenses for the specified time period. Also, two
plaintiffs were awaiting trial for obscenity violations and for
promotion of prostitution, and would have run afoul of the
provision denying licenses to persons under indictment or
information. See id. at 1075 n.39 (noting a "palpable" threat to
those applicants).
The City offers two arguments in support of the view that the
plaintiffs cannot recover fees for work resulting in the 1986
changes: (1) that the plaintiffs waived this claim, and (2) that
they never had standing to challenge those portions of the
ordinance. Both are unavailing. The former argument is based on
the City's observation that the plaintiffs' first request for
attorneys' fees (or, more precisely, their reminder to the district
court that they had yet to apply for the attorneys' fees requested
in their complaint) came forty-seven months after the district
court's September 1986 judgment. The City argues that the
plaintiffs therefore failed to comply with Local Rule 12.2,
requiring attorneys' fees requests to be filed within thirty days
after judgment. Local Rule 12.2, the City suggests, should be read
to refer to the district court's 1986 judgment rather than the
final judgment in the litigation, because after the amendment of

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10 The plaintiffs, relying on Echols v. Parker, 909 F.2d 795,
801-02 (5th Cir. 1990), argue that Local Rule 12.2 cannot be read
to require such interim fee applications because the district
court would have no jurisdiction to entertain them after a notice
of appeal on the merits was filed. Echols, however, held that a
defendant's appeal from an award of attorneys' fees deprived the
district court of jurisdiction to supplement the fee award.
Though we are not required here to decide whether Echols can be
given the broader reading urged by the plaintiffs, we note that
the broader reading would conflict with the rule followed by most
other circuits. See, e.g., West v. Keve, 721 F.2d 91, 95 n.5 (3d
Cir. 1983); Masalosalo by Masalosalo v. Stonewall Insurance Co.,
22
the ordinance in October 1986, the specific provisions found
defective by the district court in 1986 were no longer at issue in
the case. The City asserts that it was unfairly surprised and
prejudiced by the plaintiffs' belated request for attorneys' fees,
warranting denial of the request under White v. New Hampshire
Department of Employment Security, 102 S.Ct. 1162 (1982).
In White, the Supreme Court did state that it would read
section 1988 to allow a district court to deny fees if it felt that
such an award would create unfair surprise or prejudice. Id. at
1167-68. However, the district court here did not deny fees on
that ground, and we are not inclined to make such a finding based
solely on the City's assertion in its brief to this Court. Also,
we are not convinced that under these circumstances Local Rule 12.2
bars the plaintiffs' request insofar as it relates to relief
obtained in 1986. Neither side contends that the plaintiffs were
"prevailing parties" in September 1986, when the district court's
invalidation of the four severable subsections of the ordinance was
the only relief they had obtained. Leaving aside the question of
whether Local Rule 12.2 may in other situations compel an interim
fee request based on a judgment that is being appealed,10 we do not

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718 F.2d 955, 956-57 (9th Cir. 1983); Rothenberg v. Security
Management Co., 677 F.2d 64 (11th Cir. 1982); see also Dallas Gay
Alliance v. Dallas County Hospital District, 719 F.Supp. 1380,
1393 (N.D. Tex. 1989). Also, the Supreme Court has held that as
a matter of federal law unresolved attorneys' fees issues do not
deprive a decision on the merits of finality because the fees
issues are collateral and separate. Budinich v. Becton Dickinson
and Co., 108 S.Ct. 1717 (1988).
We also recognize that other courts have construed
comparable local rules to require such interim fee requests, see
Watkins v. McMillan, 779 F.2d 1465 (11th Cir. 1985) (per curiam);
Pitts v. Freeman, 755 F.2d 897 (11th Cir. 1985) (per curiam);
Jackson v. Beard, 828 F.2d 1077 (4th Cir. 1987), and that one of
our decisions approves of an interpretation of a local rule under
which the allotted time for filing a fees application is measured
from the date of the favorable judgment rather than the
conclusion of the litigation. See Quarles v. Oxford Municipal
Separate School District, 868 F.2d 750, 758 (5th Cir. 1989).
However, the district court is the best judge of its own rules,
and we do not have an interpretation of Local Rule 12.2 by the
district courts in the Northern District. Moreover, in none of
the cited cases did the court confront a situation such as that
presented here, in which the plaintiffs' application is based in
crucial part on relief obtained on appeal, and therefore their
entitlement to fees was not established at the time of the
district court judgment.
23
think that it can possibly dictate such a request prior to the
judgment that creates the plaintiff's substantive entitlement to
fees under section 1988. See White, 102 S.Ct. at 1166 (the inquiry
into entitlement to attorneys' fees "cannot even commence until one
party has 'prevailed'"). Moreover, the wording of the rule gives
the district judge discretion to consider untimely fee requests, so
even if we were inclined to agree with the City's interpretation,
it would be inappropriate for us to hold as a matter of law that
the local rule bars the plaintiffs' request.
The City's second argumentSQrelying on a lack of standingSQis
based on the Supreme Court's holding that the plaintiffs lacked
standing to challenge the civil disability provision of the
ordinance, section 41A-5(a)(10). See FW/PBS, 110 S.Ct. at 607-10.

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24
The City concludes from this holding that the plaintiffs never had
standing to challenge that provision, so three of the four grounds
on which the district court granted relief cannot be counted for
purposes of a fee award. The Supreme Court's standing discussion,
however, demonstrates that its holding applied only to those parts
of the civil disability provision that were then still at issue in
the suitSQnot to those that had already been invalidated and
amended or deleted. For instance, the Court observed that the one
person alleged to be affected by the provision disqualifying
applicants whose spouses had past convictions had not demonstrated
standing in part because her husband's conviction was one of those
eliminated by the October 1986 amendments. Id. at 609. The
district court's findings necessarily imply that standing existed
as to two of the three portions of the civil disability provision
it struck down, see Dumas, 648 F.Supp. at 1074 n.35, 1075 n.39, and
the Supreme Court's standing analysisSQbased on the failure of any
plaintiff to affirmatively show that his conviction was recent
enough to be disablingSQis patently inapplicable to the third (the
provision permitting the police chief to deny a license despite the
passage of the requisite number of years if the applicant was not
"presently fit"). Moreover, the issue of standing as to those
provisions is res judicata; the plaintiffs received a favorable
judgment from the district court as to those provisions, and the
City did not appeal.
Therefore, taking the plaintiffs' partial success before the
Supreme Court in conjunction with the four minor changes to the
ordinance in 1986, we conclude that the plaintiffs are prevailing

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25
parties who achieved more than purely technical or de minimis
success and are thus entitled to an award of some fees under
section 1988(b). We accordingly must reverse the district court's
contrary holding and remand for a determination of appropriate fee
awards. Several additional arguments raised by the parties before
us, however, will have some bearing on this determination, and
therefore warrant our attention.
For instance, it does not follow from our holding, as the
cabaret plaintiffs argue, that they are entitled to fees for all
work performed in challenging the license provisions. As is
evident from the summaries above, the plaintiffs brought numerous
and wide-ranging attacks against the licensing scheme, only a few
of which were successful. Hensley v. Eckerhart, 103 S.Ct. 1933
(1983), directs the following procedure when a plaintiff has
achieved only partial success. First, the district court must
determine whether the plaintiff has crossed the threshold of
"prevailing party" status. Then, after determining a reasonable
fee and excluding hours not reasonably expended on the litigation,
the district court should decide if the plaintiff has presented
"distinctly different claims for relief that are based on different
facts and legal theories." Id. at 1940. If he has, then the
district court should treat the claims on which he prevailed as if
they had been brought in a separate lawsuit, and award no fees for
services on the unrelated claims. If, on the other hand, the
plaintiff's claims for relief "involve a common core of facts or
[are] based on related legal theories," the district court must
exercise its discretion in arriving at a reasonable fee award in

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11 With regard to costs other than attorneys' fees, however,
the plaintiffs are in the same posture as the prevailing party in
any other case: under FED. R. CIV. P. 54(d), costs are allowed as
of course to the prevailing party unless the court otherwise
directs. See Northcross v. Board of Education of Memphis City
Schools, 611 F.2d 624, 639-40 (6th Cir. 1979), cert. denied, 100
S.Ct. 2999 (1980).
26
light of the significance of the relief obtained. Id. Our above
holding resolves only the first step of this procedure. Whether
the district court concludes that under the Hensley framework the
challenges to the licensing scheme are properly evaluated as
separate lawsuits or as one suit involving interrelated claims, the
very limited degree of the plaintiffs' success will be distinctly
pertinent.11 We again note that Farrar emphasized that "'the degree
of success obtained'" is "'the most critical factor' in determining
the reasonableness of a fee award." Id., 113 S.Ct. at 574 (quoting
Hensley, 102 S.Ct. at 1941). Here, although we have held that
plaintiffs' success is sufficient to entitle them to more than a
zero award, we do not thereby imply that the district court, even
if it finds all the licensing challenges interrelated, may not
reduce the fee award to a level well below what would have properly
been made had a substantially greater degree of success been
achieved.
Also, we do not agree with the cabaret plaintiffs' contention
that the 1990 change to the ordinance removing the disqualification
of a license applicant based on his cohabitation with an
unsuccessful applicant should be counted as part of the relief
obtained for this purpose. Unlike for the 1986 changes, a fee
award for this change is foreclosed by the Supreme Court's holding

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27
that the plaintiffs lacked standing to challenge the provision.
The Supreme Court vacated our judgment insofar as it applied to
that provision "with directions to dismiss that portion of the
action." FW/PBS, 110 S.Ct. at 610. The plaintiffs cannot obtain
attorneys' fees for a challenge that they never had standing to
bring and that the Supreme Court directed should be dismissed.
With regard to the other 1990 amendment not compelled by the
Supreme Court's opinionSQthe deletion of the provision concerning
new license applications after the denial of a license renewalSQthe
district court will need to make a finding as to whether or not it
can plausibly be characterized as a product of the plaintiffs'
suit. It concerns a provision that was not challenged in this
Court and that, though raised by the cabaret plaintiffs in their
brief to the Supreme Court, was not mentioned by the Supreme Court
in its opinion.
II. Damages
The district court also rejected the bookstore plaintiffs'
claim for monetary damages under section 1983, concluding that none
of them had shown that they sustained any injury as a result of any
part of the ordinance held unconstitutional. We agree that there
is no evidence in the record supporting an award of monetary
damages. In their response to the City's summary judgment motion
asking that "Plaintiffs take nothing," the bookstore plaintiffs
argued that any damages from the closure of any of their
establishments pursuant to the ordinance would be compensable, but
they did not specify whether any business had been forced to close,
or cite any evidence in the record in support of their alleged

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28
damages. In their May 1, 1991 motion to amend the judgment, they
asked for a continuance under FED. R. CIV. P. 56(f) to develop their
request for damages, and also argued that evidence already in the
record from 1986 indicated that the plaintiffs were damaged because
the sworn statements of William Evert, Paul Radnitz, and Charles
Carlock indicated that they were forced to complete license
applications under the invalid ordinance and to pay licensing fees
therefor. None of these statements, however, indicates that the
plaintiffs were forced to pay any licensing fee; Radnitz, in fact,
expressly stated that no fee is required until the license is
granted.
In their brief to this Court, they refer to the same
statements and to affidavits of Beverly Van Dusen, John Randall
Dumas, and Mike Murphy. The Van Dusen affidavit, however, also
contains no allegation that she was forced to pay a fee or was
denied a license, and Dumas and Murphy are cabaret plaintiffs whose
alleged damages cannot support the bookstore plaintiffs' request.
The bookstore plaintiffs also refer in their present brief (as they
did in their brief to the Supreme Court) to an affidavit by Dallas
police officer Stephen Foster allegedly stating that 2 licenses had
been revoked on the basis of obscenity convictions, and that
overall 147 out of 165 applications for licenses had been granted
(suggesting that 18 license applications had been rejected). This
affidavit, which supposedly was part of the City's response to a
motion by the plaintiffs to stay the mandate of one of the courts
in this litigation, is not part of the record and has not been
provided to this Court. Moreover, the bookstore plaintiffs

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12 The bookstore plaintiffs further argue that at the least
they were entitled to nominal damages under Carey v. Piphus, 98
S.Ct. 1042 (1978). Because we have already held that they are
prevailing parties for the purposes of an attorneys' fees award,
we see no remaining relevance in this issue.
29
conspicuously fail to allege that the persons described in this
affidavit are even parties to this suit. Finally, although in
their brief to this Court the bookstore plaintiffs describe their
complaint as one seeking declaratory and injunctive relief,
attorneys' fees, and damages, their original complaint contains no
request for monetary damages, and we can find no indication in the
record that they ever amended their complaint.
Because none of the references in their brief or in their
motions below lead to any competent summary judgment evidence of
damages, and because they did not request monetary damages until
their response to the summary judgment motion in August 1990, we
conclude that the bookstore plaintiffs have raised no genuine issue
of material fact regarding their entitlement to damages, and that
the district court was correct in granting summary judgment on this
issue and did not abuse its discretion in refusing a continuance.12
Conclusion
Because we conclude that the district court erred in holding
that the bookstore and cabaret plaintiffs were not "prevailing
parties" achieving more than purely technical or de minimis success
for purposes of section 1988, we reverse the portion of the summary
judgment denying any and all attorneys' fees and remand for a
determination of appropriate fee awards. However, we conclude that
the district court properly granted summary judgment against the

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30
bookstore plaintiffs on their claim for monetary damages under
section 1983, and we affirm that portion of the district court's
order.
AFFIRMED in part; REVERSED and REMANDED in part

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