JORDAN v. ALLAIN Nos. GC82-80-WK-O, GC82-81-WK-O.
619 F.Supp. 98 (1985)
David JORDAN and Sammie Chestnut, on behalf of the Greenwood Voters League, Individually and on behalf of others similarly situated, Plaintiffs, v. William A. ALLAIN, Governor of Mississippi, T.H. Campbell, III, Chairperson, Bill Harpole, Vice-Chairperson, J.C. "Con" Maloney, Secretary, and their successors in office, Joint Congressional Redistricting Committee; Brad Dye, Lieutenant Governor of Mississippi and President of the Senate; and Clarence B. "Buddie" Newman, Speaker of the House of Representatives, Defendants. Owen H. BROOKS, Sarah H. Johnson, Rev. Harold R. Mayberry, Willie Long, Robert E. Young, Thomas Morris, Charles McLaurin, Samuel McCray, Robert Jackson, Rev. Carl Brown, June E. Johnson, and Lee Ethel Henry, individually and on Behalf of others similarly situated, Plaintiffs, v. William A. ALLAIN, Governor of Mississippi, Edwin L. Pittman, successor in office to William A. "Bill" Allain, Attorney General of Mississippi; Dick Molpus, successor in office to Edwin Lloyd Pittman, Secretary of State of Mississippi, in their official capacities and as members of the Mississippi State Board of Election Commissioners; State Board of Election Commissioners, Mississippi Democratic Executive Committee, Mississippi Republican Executive Committee, Defendants.
United States District Court, N.D. Mississippi, Greenville Division.
April 1, 1985.
Frank R. Parker, Patricia Hanrahan, Sidney Bixler, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., Johnnie E. Walls, Jr., Greenville, Miss., Robert B. McDuff, University, Miss., for Brooks plaintiffs.
Alvin O. Chambliss, North Miss. Rural Legal Services, Oxford, Miss., Willie Perkins, North Miss. Rural Legal Services, Greenwood, Miss., for Jordan plaintiffs.
Edwin L. Pittman, Atty. Gen. of Miss., Jackson, Miss., Jerris Leonard, Kathleen Heenan McGuan, Washington, D.C., Hubbard T. Saunders, IV, Champ Terney, Jackson, Miss., R. Scott Levanway, Jackson, Miss., for State defendants.
Michael B. Wallace, Jackson, Miss., for Republican defendants.
KEADY, District Judge.
The court presently has for consideration the motion of the Brooks plaintiffs,
Plaintiffs now seek an attorneys' fee award totaling $350,749.00
I. Procedural History
In their complaint filed April 5, 1982, plaintiffs sought (1) an injunction against utilization of the state's 1981 legislatively enacted congressional redistricting plan, known as the "least change" plan,
Plaintiffs were successful in each of these objectives, securing an injunction against utilization of the "least change" plan unless and until the plan was precleared in accordance with section 5, 541 F.Supp. at 1141-42; obtaining a prohibition against the further use of the malapportioned 1972 plan, id. at 1142; and facilitating the adoption of an interim plan for holding the 1982 Republican and Democratic party primaries and general election, id. at 1142-45. Although the interim plan initially adopted by the court, known as the "Simpson plan,"
Plaintiffs appealed the trial court's ruling to the Supreme Court, contending that the Simpson plan unlawfully diluted black voting strength in the Second District by combining majority white "hill" counties with predominantly black Delta and part-Delta counties. The state defendants cross-appealed claiming error in the ruling. While these appeals were pending, Congress amended section 2 of the Voting Rights Act and the Supreme Court subsequently vacated and remanded this court's first decision for reconsideration in light of amended section 2. Brooks v. Winter, 461 U.S. 921, 103 S.Ct. 2077, 77 L.Ed.2d 291 (1983) (mem.).
After extensive briefing and a second evidentiary hearing in December 1983, involving for the first time the participation of the Republican defendants on an active basis,
Following promulgation of the court plan in January 1984, the Republican defendants moved the trial court to amend its judgment, specifically attacking the constitutionality of section 2 as amended and seeking reinstatement of the Simpson plan. The court overruled the motion, and all parties active in the litigation — the Brooks plaintiffs and both Republican and state defendants — appealed the trial court's second decision to the Supreme Court.
II. Applicability of §§ 1988 and 1973
At the outset, we reject the contention of the Republican defendants that attorneys' fees for time spent in pursuit of "pure" section 2 remedies, without other statutory or constitutional foundation (specifically, attorney work performed in connection with the second evidentiary hearing), are not recoverable by a prevailing party under the plain language of either § 1988, which allows an award of fees to a prevailing party in proceedings to enforce certain enumerated civil rights statutes, see supra note 5, or § 1973l (e), which provides fees in successful proceedings to enforce constitutional voting guarantees, see supra note 6. The legislative histories of both § 1973l (e) and amended § 2 (42 U.S.C. § 1973), as well as decisional law awarding fees in voting rights actions, make clear beyond peradventure that a prevailing voting rights litigant is entitled to recover attorneys' fees regardless of the statutory or constitutional predicate of the action. As the House sponsor of Section 402 of the Voting Rights Act Amendments of 1975 (subsequently codified as 42 U.S.C. § 1973l (e)) explained during floor debate on the section:
121 Cong.Rec. H4735 (daily ed. June 2, 1975) (remarks of Congressman Robert Drinan). Similarly, the House Report on amended section 2 declares Congress' intent that private litigants who establish a violation of the statute "are entitled to attorneys' fees under 42 U.S.C. §§ 1973l (e) and 1988." H.R.Rep. No. 97th Cong., 1st Sess. 32 (1981).
Courts presented with fee requests submitted by prevailing parties in actions brought under the Voting Rights Act have routinely applied the fee statutes in question. In Posada v. Lamb County, 716 F.2d 1066 (5th Cir.1983), an action brought under both section 5 and article I, section 2, the Fifth Circuit stated without elaboration that "[a]ttorneys fees are available under § 1973l (e) of the Voting Rights Act and § 1988 to `prevailing parties' in voting rights litigation." 716 F.2d at 1071; see
Finally, we observe that awarding attorneys' fees to prevailing parties in litigation brought to enforce statutory, rather than constitutional, voting guarantees furthers the congressional purpose in enacting both §§ 1973l(e) and 1988 by "encouraging private litigants to act as `private attorneys general' in seeking to vindicate the civil rights laws." Donnell, 682 F.2d at 245. As the Senate Report on § 1973l (e) stated, "Congress depends heavily upon private citizens to enforce the fundamental rights involved. The awards are a necessary means of enabling private citizens to vindicate these Federal rights." S.Rep. No. 295, 94th Cong., 1st Sess. 40 (1974), reprinted in  U.S.Code Cong. & Ad.News 774, 807, quoted in Donnell, 682 F.2d at 245. The statutory interpretation urged by the Republican defendants is directly contradictory to the stated purpose of § 1973l (e) and would serve to hinder, rather than encourage, private enforcement of the Voting Rights Act.
III. Which Party Prevailed?
The adverse motions of the Brooks plaintiffs and the Republican defendants for awards of attorneys' fees brings into sharp focus the statutory mandate of §§ 1988 and 1973l (e) that fees and expenses may be recovered only by a prevailing civil rights litigant. The phrase "prevailing party" carries the same general meaning under both acts. S.Rep. No. 295, 94th Cong., 1st Sess. 40 (1974), reprinted in  U.S.Code Cong. & Ad.News 774, 807; Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40, 50 n. 7 (1983); Posada v. Lamb County, 716 F.2d at 1071. Plaintiffs assert that they prevailed in all aspects of this litigation, with the sole exception of their second appeal in No. 83-1865 in which they sought to overturn the court-drawn boundaries of the Second District in favor of a 65% black district, and that they should be compensated accordingly. Plaintiffs' counsel frankly concede that they were unsuccessful on that appeal; the affidavits submitted in support of their fee request do not catalogue time spent in pursuing plaintiffs' appeal in No. 83-1865, but do include hours devoted to resisting defendants' appeals in Nos. 83-1722 and 83-2053.
The state defendants make no attempt to controvert plaintiffs' claim of success in any regard other than on the first appeal, arguing that the Supreme Court's vacation and remand for reconsideration in light of amended section 2 was prompted not by plaintiffs' efforts, but by the Solicitor General's amicus curiae brief urging such a disposition. For reasons expressed in Part IV, A, 3 below, we agree with state defendants that compensation claimed by plaintiffs' counsel for work performed in furtherance of the first Supreme Court appeal should be reduced to reflect plaintiffs' limited success.
The Republican defendants claim that it was they, and not the Brooks plaintiffs, who prevailed at the second evidentiary hearing and on the second appeal, and are therefore entitled to fees and expenses as prevailing defendants. The court is thus called upon to make the "threshold determination" of who actually prevailed and to what extent and at what stages of the litigation each party may be considered successful within the intendment of the governing statutes. See Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40, 50 (1983).
A. The Brooks Plaintiffs
In assessing plaintiffs' claims, we are guided by the Hensley Court's recognition that, "`plaintiffs may be considered "prevailing parties" for attorneys' fees purposes if they succeed on any significant issue in litigation which achieves some of benefit the parties sought in bringing
Neither group of defendants disputes plaintiffs' success in securing injunctions against use of the unprecleared "least change" plan or the malapportioned 1972 plan. Nor can it be denied that plaintiffs brought about a fundamental realignment in Mississippi's congressional districts, thereby vindicating the voting rights of black Mississippians. The trial court's adoption of the Simpson plan in 1982 eliminated the horizontal dismemberment of the Delta; in 1983, the court concluded that the combination of certain majority white counties with black majority Delta counties unlawfully diluted black voting strength in violation of section 2. The end result was promulgation of the first congressional redistricting plan in Mississippi since passage of the Voting Rights Act that contained a district with a majority black voting age population.
The fact that the relief ultimately granted plaintiffs was not fully commensurate with that requested, is, while relevant, not a controlling factor. Hensley teaches that fees should not be denied or reduced "simply because the plaintiff failed to prevail on every contention raised in the lawsuit," so long as the attorney hours expended are reasonable in view of the limited success achieved. 461 U.S. at 435, 103 S.Ct. at 1940, 76 L.Ed.2d at 52. Further, in Commissioners Court of Medina County v. United States, 719 F.2d 1179 (D.C.Cir. 1983), the court observed that, in the context of a section 5 judicial preclearance proceeding, the county's failure to adopt the preferred plan of minority voters and the Attorney General's approval of the new county plan over the minority voters' objections "does not dilute appellants' claim to `prevailing party' status." 719 F.2d at 1181.
The Republican defendants argue that plaintiffs are not entitled to fees for work performed in relation to the second appeal, ignoring the fact that plaintiffs have not requested compensation for pursuing their own appeal, but only for defending the two appeals taken by the Republican Party and the state defendants. In this regard, Republican reliance on Hanrahan v. Hampton, 446 U.S. 754, 758-59, 100 S.Ct. 1987, 1989-90, 64 L.Ed.2d 670 (1980) (attorneys' fees should not be awarded where no actual relief is secured in appellate court), is misplaced. We therefore find as a fact, and hold as a matter of law, that the Brooks plaintiffs are the prevailing parties in this action within the meaning of §§ 1988 and 1973l (e), and are thus entitled to recover reasonable attorneys' fees, subject to adjustment for the limited success achieved on the first appeal.
B. The Republican Defendants
Consistent with our conclusion that the Brooks plaintiffs obtained significant relief in this action, we determine that there is no basis in fact or in law for either awarding attorney's fees and litigation expenses to the Republican defendants or assessing Rule 11 sanctions against the Brooks plaintiffs or their counsel. First, the Republican defendants clearly cannot be considered a "prevailing party" within the meaning of §§ 1988 or 1973l (e), with the possible limited exception of defending the Brooks plaintiffs' appeal in No. 83-1865. While the Republican defendants now profess post-election satisfaction with the 1984 court-ordered plan, these defendants vigorously opposed abandonment of the Simpson plan prior to and during the December 1983 evidentiary hearing and, as noted above, they unsuccessfully attempted to stay implementation of the new plan and reinstate the Simpson plan on at least two occasions following entry of judgment. Nor were these defendants successful either in their attempt to secure a stay pending an appeal in the Supreme Court or on the merits of their appeal in No. 83-1722.
Even were we to consider the Republican defendants a "prevailing party," they fall far short of establishing, as they must in order to recover attorney's fees against an unsuccessful civil rights plaintiff, that either
Likewise, the Republican defendants are not entitled to an assessment of Rule 11 sanctions against plaintiffs' counsel for resisting the Brooks plaintiffs' attorneys' fees motion, as they have failed to establish that the Brooks plaintiffs' motion is not "well grounded in fact and ... warranted by existing law or a good faith argument" or is interposed for an "improper purpose." Fed.R.Civ.P. 11. Indeed, plaintiffs' motion raises serious questions as to the proper allocation of responsibility for payment of a fee award between state and private defendants, as will be addressed below.
IV. Reasonableness of Plaintiffs' Fee Request
Hensley dictates that "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." 461 U.S. at 433, 103 S.Ct. at 1939, 76 L.Ed.2d at 50; see also Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1543, 79 L.Ed.2d 891, 895 (1984). This initial calculation may then be adjusted upward or downward by the district court to account for such factors as either exceptional or limited success and the contingent nature of the lawsuit. Hensley, 461 U.S. at 434-37, 103 S.Ct. at 1940-41, 76 L.Ed.2d at 51-53. Similarly, the Fifth Circuit has directed the district courts to give "special heed" to the Johnson
After considering memoranda of law and affidavits and statements of counsel regarding the reasonableness of plaintiffs' fee request, the court, pursuant to the guidelines articulated in Hensley, 461 U.S. at 433-37, 103 S.Ct. at 1939-41, 76 L.Ed.2d at 50-53, and Johnson, 488 F.2d at 717, as modified by Copper Liquor II, 624 F.2d at 581-84, and Copper Liquor III, 684 F.2d at 1092-97, and as affected by Blum v. Stenson, 465 U.S. at ___ - ___, 104 S.Ct. at 1548-50, 79 L.Ed.2d at 901-03 (certain Johnson factors irrelevant to court's consideration of request for enhancement of fee), finds as follows.
A. Time and Labor Required
As stated, plaintiffs' counsel seek compensation for 1555.45 hours expended by six attorneys at various stages of this litigation. This total includes 61 hours expended by two attorneys in mounting private opposition to section 5 preclearance of the "least change" plan prior to commencement of this action;
The state defendants object to plaintiffs' inclusion of 61 hours spent by Messrs. Parker and McDuff in opposing, on behalf of private parties, section 5 preclearance of the state's "least change" plan prior to initiation of this lawsuit. In urging the Attorney General to enter such an objection, a course of action which was in fact taken by the Attorney General, counsel prepared three comprehensive section 5 comment letters which discussed in great detail the legislative history of the "least change" plan, analyzed its discriminatory impact, and presented legal argument against use of Mississippi's 1966 and 1972 redistricting plans as benchmarks to determine whether the "least change" plan had a discriminatory effect.
These defendants correctly state that the Fifth Circuit has not yet conclusively determined whether attorney time spent in private opposition to section 5 preclearance is properly compensable under the relevant fee statutes. See Posada v. Lamb County, 716 F.2d at 1073-74. In Posada, the court assumed, without deciding, that in an appropriate case such private participation in the administrative process could be compensable. In so doing, the court articulated a stringent standard which preclearance opponents must meet to show entitlement to a fee award:
Posada, 716 F.2d at 1075 (citing Donnell, 682 F.2d at 248-49) (our emphasis).
The Brooks plaintiffs acknowledge the difficulty in meeting Posada's heavy evidentiary burden, as neither they nor this court are privy to the internal decisionmaking processes of the Justice Department; plaintiffs thus attempt to satisfy Posada by quoting from the Attorney General's section 5 objection letter, which makes reference to the opposition of these private parties. However, such proof, standing alone, is clearly insufficient to
716 F.2d at 1075. We are constrained to hold that the Brooks plaintiffs have failed to meet their burden of proof with regard to the significance of their participation in the preclearance process; accordingly, 18 hours claimed by Mr. Parker and 43 hours claimed by Mr. McDuff must be excluded from their compensable time.
Plaintiffs' counsel's preparation for and participation in the first trial in May 1982, including the drafting of post-trial briefs, consumed 335.25 attorney hours. Republican defendants have virtually no interest in this aspect of the litigation and state defendants have only minor objections to the time logged. Their primary argument is that some of the hours charged against them are more properly attributable to other parties over whom they exercised no control; insofar as these defendants object to time spent by plaintiffs' counsel in reviewing pleadings generated by the Republican and Democratic defendants and the AFL-CIO amicus brief during this period, we believe that this time (6.9 hours spent by Messrs. Parker and Walls and unspecified portions of 15 hours spent by Mr. Walls) is sufficiently related to plaintiffs' prosecution of their claims against the state defendants, who at all times assumed the primary responsibility for defending the litigation, to justify compensation from the state treasury.
However, we are concerned that the hours claimed by Mr. Walls during this period (87.1), devoted in large measure to the review of pleadings prepared by others, conferences and other purely administrative matters, is duplicative. We therefore reduce his claim by 50% (-43.55 hours).
After careful review of the other attorney affidavits covering this period of the litigation, we are convinced that the time expended was neither excessive nor duplicative, and should thus be allowed. Although, as we have previously observed, plaintiffs did not obtain the full relief which they sought at this stage of the proceedings, no further reduction of the time claimed is warranted due to the significant success achieved and the enhanced relief obtained following remand.
The claimed 150 hours spent on the first appeal should be substantially reduced due to the limited nature of plaintiffs' success in the Supreme Court. A large number of these hours (Parker: 34; Hanrahan: 1) are easily segregated from the total as having been devoted to a wholly unsuccessful endeavor — plaintiffs' application for stay of the district court judgment pending appeal, which the Supreme Court denied — and will thus be disallowed. We find suspect, and therefore exclude as unreasonable, an additional 23.5 hours claimed by Mr. Parker for two trips to Greenwood, Mississippi, to consult with clients during the pendency of this appeal. It is difficult to conceive why counsel's physical presence was required in Greenwood at such a time or, at the very least, why local counsel could not have handled the matter.
Plaintiffs' claim for the remaining 91.5 hours (Parker: 88; McDuff: 3.5) spent on the merits of the appeal again raises the related issues of "prevailing party" status and the actual degree of success achieved by plaintiffs. While there can be little doubt that the ultimate result of the appeal — remand for a second evidentiary
Furthermore, it cannot be said that plaintiffs were successful on the merits at the appellate level, although it is true that had the Brooks plaintiffs never taken the first appeal, the first judgment would not have been vacated nor further relief granted in a second evidentiary hearing. In Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), the Supreme Court disallowed as premature a fee award where plaintiffs had not prevailed on the merits of their case in the appellate court, but had merely secured a reversal and remand for new trial. Id. at 758-59, 100 S.Ct. at 1989-90. The instant case differs somewhat from Hanrahan in that plaintiffs here were eventually successful in obtaining further relief. Because of the mixed results of counsel's time expenditure on the first Supreme Court appeal, we reduce the remaining 91.5 hours by one-half. We thus find that Mr. Parker should be compensated for 44 hours and Mr. McDuff 1.75 hours expended during this period.
We emphatically reject the argument of Republican defendants, made with reference to the second appeal but equally applicable here, that the Supreme Court's partial reservation unto itself of the right to tax costs in that Court, embodied in its Rule 50, deprives this court, or any other lower court, of jurisdiction to assess attorneys' fees for work performed on appeal to the Supreme Court. It is well established that a district court may award prevailing civil rights plaintiffs attorneys' fees for work performed at the appellate level. See, e.g., Gresham Park Community Org. v. Howell, 652 F.2d 1227, 1248 n. 61 (5th Cir.1981); Johnson v. State of Mississippi, 606 F.2d 635, 638-39 (5th Cir.1979). More to the point, in Kirchberg v. Feenstra, 708 F.2d 991 (5th Cir.1983), the Fifth Circuit expressly held that prevailing civil rights litigants were entitled to compensation for work performed in the Supreme Court, and remanded the case to the district court with instructions to make such an award. 708 F.2d at 1001; see also Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 954-55 (1st Cir.1984) (routinely awarding compensation for work performed before Supreme Court); Henry v. First National Bank, 603 F.Supp. 658, 666 (N.D.Miss.1984) (same).
Notwithstanding the involvement of five attorneys, including their presence at trial, and the relatively large number of hours claimed by counsel for work performed in connection with the second evidentiary hearing (715.7), we conclude after close examination that the time spent, with minor exceptions, was reasonable under the circumstances and that counsel should be compensated accordingly. A considerable amount of the time claimed was devoted to the research of novel issues and preparation of extensive pretrial memoranda which proved helpful to the court. Other large blocks of time were spent in interviewing
However, we deduct 4 hours claimed by Mr. Parker on November 15, 1983, and a total of 18 hours claimed by Mr. Bixler on November 15, 16 and 17, 1983, for unnecessary duplication in the preparation for and attendance at certain evidentiary depositions taken on the dates noted. As for the attendance of five lawyers at trial, we observe that all counsel participated to some degree, although primary responsibility was clearly borne by Mr. Parker, and that the participating defendants were represented by a total of five attorneys, four representing the state defendants and one representing the Republican defendants. All other objections not specifically mentioned herein have been considered by the court and rejected.
As previously stated, plaintiffs seek no compensation for time spent in prosecuting their second appeal to the Supreme Court in No. 83-1865, but do claim a total of 147.4 hours spent to oppose defendants' motions for post-judgment relief in the trial court and to resist defendants' appeals in Nos. 83-1722 and 83-2053. Plaintiffs were successful in both aspects, protecting the significant relief they obtained in the trial court from the several collective efforts of defendants to reinstate the Simpson plan. In view of the substantial number of hours devoted to that end by defendants' counsel, we believe the time spent by plaintiffs' counsel to be entirely reasonable. However, consistency demands that we make minor reductions of time, as follow, for hours clearly spent in furtherance of plaintiffs' own appeal: .4 hours spent by Mr. Walls discussing possible appeal with co-counsel (Jan. 23, 1984); and .9 hours similarly expended by Mr. McDuff (Jan. 5, 10, 23 & 24). Additionally, we subtract .5 hours from Mr. Parker's total which was erroneously included in his second affidavit without documentation.
Defendants' objections to time expended by plaintiffs' counsel in opposing post-judgment relief in this court have a distinctly hollow ring; in the opinion of the court, these defendants, and particularly the Republican Party, crossed the line separating hard-fought litigation from needless multiplication of proceedings, at great waste of both the court's and the parties' time and resources. With regard to state defendants' objection that they should not be charged with time spent by plaintiffs' counsel in responding to Republican efforts to overturn the district court's judgment, we simply observe that the state defendants joined in the Republican motions for post-judgment relief and must assume responsibility therefor.
The Supreme Court's admonition that "[a] request for attorney's fees should not result in a second major litigation," Hensley, 461 U.S. at 437, 103 S.Ct. at 1941, 76 L.Ed.2d at 53, has been reduced to little more than wishful thinking in the instant case. The court has literally been flooded with paper, more easily measurable in pounds than in pages, from all parties. Plaintiffs have filed an original fee motion, an amended motion, a second amended motion and a supplemental motion, together with supporting briefs and evidentiary materials; in all but one instance plaintiffs seek additional compensation for preparation of their submissions, devoting an aggregate of 145.6 hours, comprising nearly 10% of the total time invested in the litigation, to recovery of attorneys' fees.
While work performed in preparing a fee request is plainly compensable, Kirchberg, 708 F.2d at 1001; Ridell v. National Democratic Party, 624 F.2d 539, 547 (5th Cir. 1980), hours so expended are no less subject to the stricture of reasonableness than are those devoted to the merits of the case. Plaintiffs' briefs on the attorneys' fees issue — and we count a minimum of five, totaling 94 pages — address for the most part, settled, fundamental questions of law with which counsel are doubtless intimately familiar. Plaintiffs' first and second briefs are, to a large degree, needlessly repetitive. Research and writing of the three briefs for which Mr. Parker and Ms. Hanrahan
In accordance with the specific hourly deductions the court has made above, we conclude that a total of 1262.35 hours expended by plaintiffs' counsel are properly compensable as follows:
Attorney Hours Claimed Deduction HoursParker 903.55 - 168.9 734.65 Hanrahan 191.80 - 10.6 181.20 Bixler 182.8 - 18.0 164.80 McDuff 161.30 - 45.65 115.65 Walls 110.0 - 43.95 66.05 Stewart 6.0 - 6.0 0 ____________ ____________ 1,555.45 1,262.35
B. Novelty and Difficulty of the Issues
This case required consideration of long-established legal principles as well as application of newly-enacted statutory criteria in evaluating plaintiffs' section 2 claims on remand. With regard to plaintiffs' request for an injunction blocking utilization of the patently unconstitutional 1972 plan and the unprecleared "least change" plan, we agree with defendants that these were issues upon which it was "hardly conceivable that the plaintiffs could possibly lose." Flowers v. Wiley, 675 F.2d 704, 706 (5th Cir. 1982).
However, plaintiffs were put to far greater difficulty in establishing a section 2 violation at the second evidentiary hearing and in securing adoption of a redistricting plan which contained a majority black voting age population. Plaintiffs correctly point out that whether the trial court would conclude that its own court-ordered remedy (the Simpson plan) was itself violative of section 2, a result clearly not mandated by the Supreme Court's remand, was highly speculative. Finally, the court was called upon to consider the novel question of section 2's constitutionality.
C. The Skill Requisite to Perform the Legal Services Properly
The court finds that plaintiffs' counsel ably and skillfully performed the professional services rendered on behalf of their clients.
D. Preclusion of Other Employment by the Attorneys Due to Acceptance of the Case
We agree with plaintiffs' counsel that acceptance of this case committed counsel to a major undertaking, necessitating the expenditure of a considerable amount of attorney time. However, we note that by far the largest blocks of time were spent by attorneys employed by the Lawyers' Committee (Parker, Hanrahan and Bixler and, to a lesser extent, McDuff), an organization whose primary function is to undertake just such litigation. The court is cognizant of the fact that the instant representation demanded counsel's faithful attention during peak periods of activity, but we are also aware that counsel were engaged in other civil rights actions during the time period in question. On balance, we conclude that plaintiffs' counsel were not unduly precluded by this representation from accepting other employment.
E. The Customary Fee
"`[R]easonable fees' ... are to be calculated according to the prevailing market rates in the relevant community," that is, those rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and
As we have in the past, we decline counsel's invitation to reward their services at out-of-district rates: "we believe that the rates allowed by this court for legal work performed in this judicial district should reflect the customary fee here rather than the standard rates in Washington, D.C." Henry, 603 F.Supp. at 666. Plaintiffs' argument that their Washington counsel should be compensated at Washington rates because the state defendants also retained Washington counsel, Jerris Leonard and Kathleen H. McGuan, is unpersuasive, particularly in view of the fact that defendants' counsel were compensated at rates substantially below what their services would command in Washington, $85 and $50 per hour, respectively. Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir.1982), cert. denied, 461 U.S. 956, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983), and Bolden v. City of Mobile, No. 75-297-P, slip op. (S.D.Ala. Dec. 12, 1983), two cases cited by plaintiffs for the proposition that out-of-district counsel should be awarded out-of-district rates where opposing counsel are so compensated, are inapposite: in both cases, unlike the case sub judice, the defendants paid their out-of-district counsel at hourly rates comparable to the rates sought by plaintiffs, thereby justifying a higher hourly rate for plaintiffs' counsel. Chrapliwy, 670 F.2d at 767; Bolden, slip op. at 18.
The court is quite familiar with reasonable hourly rates prevailing in this judicial district for attorney services and observes that such rates fall generally within the $60 to $100 per hour range, depending upon the experience, skill and reputation of the particular attorney involved. We have so noted on numerous occasions. E.g., Henry, 603 F.Supp. 666; Jackson v. Hollowell, No. GC73-51-WK, slip op. at 9 (N.D. Miss. Mar. 15, 1985); Johnston v. Lucas, No. GC82-46-WK-O, slip op. at 13 (N.D. Miss. Jan. 25, 1985); Litten v. Burke, No. WC81-168-WK-P, slip op. at 7 (N.D.Miss. Nov. 30, 1984); Quarles v. St. Clair, No. GC77-37-K, slip op. at 10 (N.D.Miss. July 2, 1984). Consonant with the experience and reputation of each applying attorney, and after firsthand observation of his or her trial skills and level of participation, we reduce the claimed hourly rates as follows:
Attorney Claimed Rate Allowable RateParker $135 $100 Hanrahan 100 65 Bixler 100 80 McDuff 75 65 Walls 75 65
F. Whether the Fee is Fixed or Contingent
As stated in Mr. Parker's affidavit, "[t]he Lawyers' Committee for Civil Rights Under Law is a private charitable civil rights legal organization which accepts cases involving the constitutional and civil rights of minority and poor persons on a non-fee generating basis." Other counsel, Mr. Walls and Mr. McDuff, to the extent that his time is not attributable to his former association with the Lawyers' Committee, also worked without payment or promise of payment of a fee. As such, payment of any fee to plaintiffs' counsel was contingent first upon plaintiffs' success in the underlying action and, second, upon an award by this court based upon appropriate fee statutes.
G. Time Limitations
Both evidentiary hearings in the trial court were conducted on an expedited basis,
H. The Results Obtained
The court has previously commented upon the results obtained by counsel on behalf of the plaintiff class, see supra Parts III, A; IV, A, 2-5. For present purposes it is sufficient to reiterate that plaintiffs' counsel are responsible for, and should be credited with, achieving significant benefits for a broad class of Mississippi citizens by vindicating the right of minority voters to participate meaningfully in congressional elections. Although the ultimate outcome of the case was determined in large part by the 1982 amendment to section 2 of the Voting Rights Act passed during the pendency of this litigation, plaintiffs' efforts to avoid unlawful dilution of black voting strength represent a hard-earned victory.
I. Experience, Reputation and Ability of the Attorneys
Plaintiffs' counsel possess varying degrees of experience in voting rights litigation, and some of these attorneys, without doubt, enjoy greater reputations in this field than do others. All counsel competently rendered professional services on behalf of their clients. The hourly rate allowed each attorney reflects that attorney's degree of experience. Mr. Parker, however, bore the primary responsibility for development and presentation of plaintiffs' case both at trial and on appeal, and he should be recognized for the excellent quality of his work.
J. Undesirability of the Case
Inasmuch as the attorneys involved in this case devote their practice almost exclusively to civil rights litigation, this action could hardly be considered "undesirable." Indeed, it is likely that counsel's reputations have been enhanced by their involvement in this case.
K. Professional Relationship With the Client
This factor is not relevant in this case.
L. Awards in Similar Cases
Our awards of $65, $80 and $100 per hour in this case fall within the range of prevailing rates in this judicial district and compare favorably with hourly rates recently awarded in other civil rights cases before this court. See, e.g., Henry, 603 F.Supp. at 666 (awards of $65, $90 and $100 per hour); Jackson v. Hollowell, slip op. at 10 ($75 per hour); Johnston v. Lucas, slip op. at 13 ($60 and $75 per hour); Quarles, slip op. at 10 ($75 per hour).
Computation of the "Lodestar" Fee
Under the method adopted by the Fifth Circuit in Copper Liquor II, 624 F.2d at 583; see also Graves v. Barnes, 700 F.2d at 222; Copper Liquor III, 684 F.2d at 1092-93, directing the district court to give "special heed" to the Johnson factors of time and labor involved, the customary fee, the results obtained, and the experience, reputation and ability of counsel, in arriving at a "lodestar" figure, which may then be adjusted upward or downward on the basis of other relevant Johnson factors, we determine that an appropriate "lodestar" fee in this case is $110,237.50, allocable as follows:
Attorney Hours Rate Lodestar FeeParker 734.65 $100 $ 73,465.00 Hanrahan 181.2 $ 65 11,778.00 Bixler 164.8 $ 80 13,184.00 McDuff 115.65 $ 65 7,517.25 Walls 66.05 $ 65 4,293.25 ___________ $110,237.50
V. Should the "Lodestar" fee be enhanced?
We next consider plaintiffs' request for a 100% enhancement of the fee award, applicable to all hours claimed with the exception of 68.7 hours spent by Mr. Parker in preparing attorneys' fees papers and 6.0 hours claimed by Ms. Stewart but disallowed by the court. Plaintiffs maintain
There is no justification in the record for an across-the-board enhancement of the fee award. We single out Mr. Parker's labor for unique treatment because of his special expertise in voting rights litigation and because of his outstanding performance in this court. Noting that the quality of representation is generally subsumed in the reasonable hourly rate, the Supreme Court has held that a district court
Blum v. Stenson, 465 U.S. at ___, 104 S.Ct. at 1549, 79 L.Ed.2d at 902. We conclude that Mr. Parker's representation falls squarely within this category and that his fee award should therefore be enhanced as described above. In denying a fee enhancement to the other attorneys involved, we observe that they have been adequately compensated for their roles in assisting Mr. Parker in this case.
Plaintiffs are thus entitled to recover reasonable attorneys' fees in the total amount of $140,805.00, allocable as follows:
Compensable Allowable Total
Attorney Hours Rate CompensationParker 734.65 $100 $ 73,465.00 50% Enhancement 611.35 $ 50 30,567.50 Hanrahan 181.20 $ 65 11,778.00 Bixler 164.80 $ 80 13,184.00 McDuff 115.65 $ 65 7,517.25 Walls 66.05 $ 65 4,293.25 ___________ $140,805.00
Plaintiffs also seek an award of $70,102.78 for out-of-pocket litigation expenses. All reasonable expenses that would customarily be billed to a fee-paying client may, of course, be recovered by plaintiffs as prevailing parties under §§ 1973l (e) and 1988. See, e.g., Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.1983); Loewen v. Turnipseed, 505 F.Supp. 512, 517-19 (N.D.Miss.1980). As such, we allow reimbursement as follows:
Paralegal ServicesSamuel Issacharoff (38.4 hours × $30 per hour) $ 1,152.00 Jill Rappaport (43.2 hours × $30 per hour) 1,296.00 Lawyers' Committee out-of-pocket litigation expensesFiling fees 275.10 Transcripts 590.00 Deposition expenses 3,120.63 Expert witness fees and expenses 32,585.61 Copying expenses 3,050.43 Travel 7,260.45 Meals and lodging 3,764.59 Long distance telephone calls 1,448.69 Postage 321.29 Express mail service 915.25 Research work and expenses 597.44 December 1983 trial transcript 1,014.00 Documents from State Auditor 76.10 McDuff ExpensesTravel, meals, lodging, express mail 554.90 _________ $58,022.48
Of the 131.1 hours generated by Mr. Issacharoff, we disallow in their entirety 46.8 hours spent preparing Brooks plaintiffs' unsuccessful application for stay in conjunction with the first Supreme Court appeal, and 7.5 hours for an unnecessary trip to Greenwood with Mr. Parker. Further, we reduce Mr. Issacharoff's remaining
The court disallows $7,183.80 charged for the printing of Supreme Court briefs in both appeals as being noncompensable under Supreme Court Rule 50.3. See, e.g., Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 957 (1st Cir.1984) (expenses of printing Supreme Court briefs are not properly taxable); Duncan v. Poythress, 572 F.Supp. 776, 781 (N.D.Ga.1983) (same). We also deduct $1700 from the total charged for travel and $400 from meals and lodging, as an approximation of the expenses incurred by Messrs. Parker and Issacharoff for their previously disallowed trips to Greenwood in July 1982 (Parker and Issacharoff) and February 1983 (Parker only). Finally, we subtract $8.00 for typing from Mr. McDuff's itemized expenses, attributable to office overhead which is not properly compensable. Dowdell, 698 F.2d at 1192. All other expenses incurred are properly chargeable to defendants as reasonable out-of-pocket litigation expenses.
Finally, we determine that full responsibility for payment of the award of attorneys' fees and expenses made herein must lie solely with the State of Mississippi. Both plaintiffs and state defendants have urged the court to assess partial liability, in varying degrees, against the Republican defendants. The question is, we think, a close one, particularly in light of the multiplication of pleadings and legal process engendered by the Republican defendants; however, in the final analysis, we find that the Republican defendants were joined in this action and participated at all times as agents of the state. As such, the state must assume full liability for payment of plaintiffs' attorneys' fees and expenses, including that portion of the total which was spent opposing Republican efforts. See supra note 4.
To summarize, we today conclude that the Brooks plaintiffs, as prevailing parties in this voting rights action, are entitled to recover from the state defendants, acting in their official capacities, the sum of $198,827.48, representing an award of attorneys' fees in the amount of $140,805.00 and litigation expenses in the amount of $58,022.48.
Let an order issue accordingly.
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