§ 1988 Fees May Include Work on an Unsuccessful Trial When Claims Share a Common Core of Facts and Plaintiff Ultimately Achieves Excellent Results

Case: Kenneth Bailey v. Shawn T. Swindell (11th Cir., June 10, 2026) (unpublished)
Posture: Defendant appealed a fee award under 42 U.S.C. § 1988 that included time spent on plaintiff’s first (unsuccessful) trial.

1) Introduction

This appeal concerns the scope of recoverable attorney’s fees under 42 U.S.C. § 1988(b) after complex, multi-phase § 1983 litigation. Kenneth Bailey sued Deputy Shawn T. Swindell arising from a September 11, 2014 encounter at Bailey’s parents’ home. Bailey pleaded two Fourth Amendment claims: (i) false arrest and (ii) excessive force (the latter “pleaded in the alternative”).

The litigation proceeded through summary judgment, two jury trials, two prior Eleventh Circuit appeals on the merits (including qualified immunity), and ultimately a substantial damages verdict for Bailey on the false arrest theory. The narrow question in this third appellate episode was whether the district court abused its discretion by awarding Bailey § 1988 fees for legal work devoted to the first trial—where Bailey lost—because that first trial concerned the excessive force claim.

Key Issue

When a civil-rights plaintiff ultimately prevails and obtains “excellent results,” may the court award fees for time spent on an earlier unsuccessful trial, where the unsuccessful claim is factually and legally related to the successful claim?

2) Summary of the Opinion

The Eleventh Circuit affirmed the fee award ($759,745 in attorney’s fees and $33,000 in non-taxable costs). Applying the Hensley framework, the court held the district court acted within its “wide discretion” in treating Bailey’s excessive force and false arrest theories as related claims sharing a “common core of facts,” thereby permitting compensation for the time spent on the first trial despite that trial’s adverse verdict.

The court emphasized that Bailey’s overall outcome—after nearly a decade of litigation, two trials, and two appeals—was an “overall excellent result,” not “partial or limited success.” It also noted that, as explained in the earlier merits appeal, liability for the unlawful home entry supported recovery for “reasonably foreseeable damages,” including those flowing from the use of force.

3) Analysis

A. Precedents Cited (and How They Shaped the Decision)

• Hensley v. Eckerhart, 461 U.S. 424 (1983)
  Role in this opinion: The controlling framework. The court relied on Hensley for (i) the lodestar starting point (“hours reasonably expended” × “reasonable hourly rate”), (ii) the “results obtained” adjustment, and (iii) the distinction between unsuccessful claims that are “distinctly different” versus those involving a “common core of facts” or “related legal theories.” The court also invoked Hensley to reinforce that there is “no precise rule or formula,” leaving substantial discretion to the district court.
• Popham v. City of Kennesaw, 820 F.2d 1570 (11th Cir. 1987)
  Role in this opinion: The Eleventh Circuit’s application of Hensley in civil-rights fee disputes. The court used Popham for two key propositions: (i) no fees for time on unsuccessful claims that are “distinctly different claims ... based on different facts and legal theories,” but (ii) where claims are related, the court compares “overall relief” to the hours expended and may award full fees for “excellent results.” Importantly, the panel cited Popham to reject an overly narrow view of “relatedness” (“expansively treated claims as being related”).
• Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292 (1988)
  Role in this opinion: Reinforced that district courts have “wide discretion” and may draw on “its own expertise,” though within limits. This supported deference to the district court’s assessment of the litigation effort across years, trials, and appeals.
• Cullens v. Ga. Dep't of Transp., 29 F.3d 1489 (11th Cir. 1994)
  Role in this opinion: Anchored deference to the district court’s “superior understanding of the litigation” when reviewing reasonableness of fees, helping justify affirmance under the abuse-of-discretion standard.
• Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712 (11th Cir. 2002)
  Role in this opinion: Cited for the standard of review: fee awards are reviewed for abuse of discretion.
• Gray ex rel. Alexander v. Bostic, 613 F.3d 1035 (11th Cir. 2010) and ACLU v. Barnes, 168 F.3d 423 (11th Cir. 1999)
  Role in this opinion: Provided the abuse-of-discretion definition: reversal is warranted where the court applies the wrong standard, follows improper procedures, or makes clearly erroneous factual findings.
• United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (en banc)
  Role in this opinion: Cited (through Gray) for the “clear error of judgment” formulation of abuse of discretion.
• City of Riverside v. Rivera, 477 U.S. 561 (1986) (plurality)
  Role in this opinion: Referenced (through Popham) for the “public benefit” consideration in § 1988 fee analysis. Here, the magistrate judge noted the litigation produced published Eleventh Circuit opinions reinforcing constitutional protections against warrantless in-home arrests absent exigent circumstances.
• Turner v. Jones, 415 Fed. App'x 196 (11th Cir. 2011)
  Role in this opinion: Used to support the causation/damages point: liability can extend to “reasonably foreseeable damages” caused by unconstitutional entry, bolstering the conclusion that the false arrest verdict encompassed injuries also associated with the force used during the arrest.
• Bailey v. Swindell, 940 F.3d 1295 (11th Cir. 2019) and Bailey v. Swindell, 89 F.4th 1324 (11th Cir. 2024)
  Role in this opinion: While this appeal is about fees, these prior merits decisions explain why Bailey ultimately prevailed and why the relief was “excellent.” The 2019 decision reversed summary judgment and held Swindell crossed a “firm” and “bright” constitutional line by stepping over the threshold to make a warrantless arrest. The 2024 decision rejected qualified immunity and required reinstatement of the jury verdict for Bailey.
• Bailey v. Swindell, 21-14454, at *2 (11th Cir. Mar. 6, 2024)
  Role in this opinion: Noted as procedural history (denial of rehearing), underscoring the durability of Bailey’s merits win and supporting the characterization of complete success.

B. Legal Reasoning

The court’s reasoning followed a structured § 1988 analysis:

1. Prevailing-party threshold met.
   Bailey ultimately obtained judgment for $625,000 on his § 1983 false arrest claim after appellate reinstatement of the verdict. That placed him “across the statutory threshold” for § 1988 fees (invoking Hensley’s phrasing).
2. Lodestar methodology remains the “starting point.”
   The panel reiterated that the typical calculation begins with hours reasonably expended multiplied by a reasonable hourly rate.
3. The central dispute was not the lodestar mechanics, but claim relatedness and “results obtained.”
   Swindell’s appeal targeted 257.4 hours from the first trial, arguing those hours were “largely noncompensable” because Bailey lost that trial.
4. Claims were “related” because they shared a common nucleus of operative fact.
   The court held the excessive force claim and the false arrest claim “relied on the same nucleus of facts,” both arising from Swindell’s conduct during the same September 11, 2014 encounter. The panel adopted the magistrate judge’s practical observation: Bailey “could not tell the use of force story without also telling the arrest story.” This defeated Swindell’s characterization of the claims as “distinct in all respects.”
5. Bailey’s overall success was “excellent,” not “partial or limited.”
   The court emphasized the end-state: Bailey won substantial relief after two trials and two appeals. The first-trial loss did not convert the case into limited success because: (i) the excessive force claim had been pleaded “in the alternative,” and (ii) the false arrest verdict and damages award delivered the relief counsel sought when filing the action.
6. Damages theory further linked the “force” injuries to the successful constitutional violation.
   The panel referenced the earlier merits appeal’s statement that the false arrest verdict established liability for “any and all reasonably foreseeable damages caused by his unlawful entry,” “necessarily including those from his use of force.” This supported treating first-trial work on force-related facts as part of the same compensable litigation effort.
7. Deference to the district court’s litigation-level perspective.
   Applying abuse-of-discretion review, the panel deferred to the district court’s “thorough reasoning” and “superior understanding of the litigation,” finding no wrong legal standard, procedural misstep, or clear factual error.

C. Impact

Although designated “NOT FOR PUBLICATION,” the decision is a clear application—and reaffirmation—of the Eleventh Circuit’s fee jurisprudence:

• Multi-claim civil-rights cases: Plaintiffs are less likely to be penalized in fee recovery for losing an interim phase (including a full trial) when the unsuccessful theory is intertwined with the successful one and the final outcome is substantial.
• Litigation strategy and pleading in the alternative: The opinion signals that alternative Fourth Amendment theories arising from a single encounter may be treated as related for fee purposes, mitigating the risk that counsel’s necessary factual development for one theory becomes “noncompensable” if that theory fails.
• Fee disputes will turn on narrative necessity: The court’s framing—“could not tell the use of force story without also telling the arrest story”—is a practical test. Future parties will likely argue whether a given tranche of work was indispensable to presenting the facts that undergird the successful claim.
• Appellate persistence can be fee-compensable when it produces complete relief: The history (two appeals won on the merits) supports robust fee recovery where appellate work is essential to securing final judgment.

4) Complex Concepts Simplified

• “Prevailing party” (under § 1988): A party who obtains a court-ordered, material change in the legal relationship—here, a reinstated judgment and damages award. Being a prevailing party opens the door to fees, but does not determine the amount.
• “Lodestar”: The baseline fee calculation: (reasonable hours) × (reasonable hourly rate). Courts may adjust it based on outcomes.
• “Common core of facts” / “related legal theories”: If claims arise from the same event and proof overlaps substantially, time spent developing the shared facts is often compensable even if one theory fails.
• “Distinctly different claims”: Claims that require different evidence and unrelated legal theories. Time on these unsuccessful claims is typically not recoverable.
• “Results obtained”: A proportionality check: if the plaintiff wins big (excellent results), fees need not be reduced merely because not every contention succeeded. If the plaintiff wins only limited relief, the court may reduce fees accordingly.
• “Abuse of discretion” review: A highly deferential appellate standard. The panel will affirm if the district court used the correct legal framework and made reasonable judgment calls within a permissible range.

5) Conclusion

The Eleventh Circuit affirmed a substantial § 1988 fee award that included time spent on Bailey’s first (unsuccessful) trial because the unsuccessful excessive force claim and the ultimately successful false arrest claim were factually intertwined, and Bailey achieved an “overall excellent result.” The opinion underscores a practical and plaintiff-protective application of Hensley and Popham: when civil-rights claims share a common core of facts and the final relief is substantial, courts may fully compensate the legal work needed to litigate the case as a whole, even if some phases or theories did not succeed.

Note: This decision is labeled “NOT FOR PUBLICATION,” but it meaningfully illustrates how Eleventh Circuit panels apply established fee principles to multi-trial, multi-appeal § 1983 litigation.