WOLFSON, United States Magistrate Judge.
Presently before the Court is the motion by plaintiff, pursuant to 42 U.S.C. § 1988, seeking attorneys' fees for legal services provided both in defending plaintiff in a state administrative tenure proceeding and in prosecuting plaintiff's § 1983 case. The parties consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636. Following briefing and oral argument on July 26, 1995, the Court directed plaintiff's counsel to adjust the attorney's fees sought and resubmit their request for fees accordingly. Subsequently, the Court received moving, opposition, and reply papers. This matter is being considered pursuant to Fed.R.Civ.P. 78. For the following reasons, plaintiff is awarded
Plaintiff is a high school teacher employed by the Board. Plaintiff filed this § 1983 action against the Board, Robert McEwan, Harry Smith, Gilmon Brooks, Joanne Collins, Michael Fornino, Dominic Loperfido, Frances Taylor, Gail Taylor, and Maureen Weber, all of whom are voting members of the Board, as well as against Michael T. Lake, Superintendent of Schools for the Neptune Township Public School System. His complaint alleged that defendants had violated his first and fourteenth amendment rights guaranteed by the United States Constitution.
The allegations in the complaint arose out of the Board's termination of plaintiff based upon his statements, made on January 30, 1992, during a radio talk show. During this radio talk show, plaintiff discussed, among other things, his disapproval of the high school's curriculum which required the teaching of African literature in his American Literature class during "Black History Month." Plaintiff's Complaint at ¶ 7.
On January 31, 1992, defendants suspended plaintiff from teaching, and further denied plaintiff salary increments. On February 20, 1992, the Board initiated a state administrative tenure proceeding to terminate plaintiff's employment by filing charges, pursuant to the New Jersey Tenure Employees' Hearing Law, N.J.S.A. § 18A:6-10, et seq., with the New Jersey Commissioner of Education.
On May 23, 1994, the administrative law judge who presided over the tenure proceedings granted plaintiff's motion to dismiss the tenure charges, finding that defendants had violated plaintiff's first amendment rights. The administrative law judge ordered the reinstatement of plaintiff, and awarded back pay and the withheld salary increments. Certification of Steven R. Cohen at ¶ 6.
Two appeals ensued. On June 14, 1994, the Board filed exceptions to the administrative law judge's decision with the Commissioner of Education.
On April 12, 1995, plaintiff moved for attorney's fees and costs incurred in connection with both the filing of the § 1983 complaint and the defense of plaintiff in the tenure proceedings, seeking a total of $106,402.38.
On July 26, 1995, the Court heard oral arguments on plaintiff's motion. The Court ruled that plaintiff was not entitled to the fees attributable to plaintiff's tenure proceeding defense which challenged the Commissioner's partiality because this defense was unrelated to plaintiff's civil rights litigation. In addition, the Court informed the parties that a discrete portion of the legal services rendered in the tenure proceedings would be allowed pursuant to Webb. Indeed, the parties and the Court had recognized the nexus between the administrative proceedings and this civil rights litigation by agreeing to stay this federal case until the administrative matter was concluded. The parties were prescient, since the conclusion of the administrative matter did result in a speedy settlement of this case. That connection, did not, however, transform the entire proceeding into a compensable event for attorney's fees under § 1988. Thus, the Court instructed plaintiff's counsel to adjust the total amount of attorney's fees accordingly. The Court further instructed plaintiff's counsel to substantiate their fee application by explaining how the services for which plaintiff's counsel sought fees had, in fact, advanced plaintiff's civil rights litigation. As guidance, the Court directed the parties' attention to Stacy v. Stroud, 845 F.Supp. 1135, 1143 (S.D.W.Va. 1993), in which the court held that fees incurred in defending a driving-under-the-influence charge were compensable under § 1988. This Court favorably noted that the
On August 4, 1995, plaintiff's counsel submitted a copy of the adjustments made to the attorney's fees in accordance with the Court's July 26, 1995 directive. The adjustments, which related only to plaintiff's partiality defense in the tenure proceedings, totalled $11,024.65. See Plaintiff's September 12, 1995 Letter Brief. By letter brief dated September 8, 1995, the Board opposed a number of the fees sought. It argued that plaintiff had again failed to establish that the services rendered in the tenure proceedings were useful and necessary to plaintiff's civil rights litigation. It further maintained that plaintiff had included as adjustments a number of deductions which plaintiff had previously subtracted in its billing discretion, and that these adjustments were therefore duplicative. In a reply letter dated September 12, 1995, plaintiff argued that the services to which defendant pointed were indeed relevant to the civil rights litigation, and that defendant's claim regarding plaintiff's duplicative adjustments was without merit.
Thus, plaintiff now seeks a total of $96,795.23 in attorney's fees.
The question presented is whether plaintiff's counsel are entitled, pursuant to 42 U.S.C. § 1988(b), to attorney's fees for legal services rendered in connection with the state administrative tenure proceedings instituted against plaintiff by the Board. Section 1988(b) provides:
Thus, § 1988 allows a court to award attorney's fees only for services rendered during "proceedings to enforce" a limited number of federal statutes. Barrow v. Falck, 977 F.2d 1100, 1104 (7th Cir.1992). "The time that is compensable under § 1988 is that `reasonably expended on the litigation.'" Webb v. Board of Educ. of Dyer Co., 471 U.S. 234, 242, 105 S.Ct. 1923, 1928, 85 L.Ed.2d 233 (1985) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)) (emphasis in original). It is incumbent upon the prevailing party to submit a request for legal fees which permits the court to determine which fees were incurred in pursuing the federal litigation. Webb, 471 U.S. at 242, 105 S.Ct. at 1928; Loranger v. Stierheim, 10 F.3d 776, 782 (11th Cir.1994).
In its Webb decision, the Supreme Court enunciated a further limitation on the recovery of attorney's fees under § 1988. In Webb, the Court held that the district court had acted well within the bounds of its discretion in denying a request for fees under § 1988 for time expended pursuing optional administrative remedies prior to the institution of the § 1983 suit. Webb, 471 U.S. at 244, 105 S.Ct. at 1929. In so holding, the Court explained that a § 1983 plaintiff is generally not entitled to claim attorney's fees for services rendered during administrative proceedings because such proceedings are not "any part of the proceedings to enforce § 1983." Id. at 241, 105 S.Ct. at 1927. This
The Court, however, carved out an exception where the plaintiff establishes that a "discrete portion of the work product from the administrative proceeding was work that was both useful and of a type ordinarily necessary to advance the civil rights litigation to the stage it reached before the settlement." Id. at 243, 105 S.Ct. at 1928-29; see also North Carolina Dep't of Transp. v. Crest Street Community Council, Inc., 479 U.S. 6, 15, 107 S.Ct. 336, 341-42, 93 L.Ed.2d 188 (1986). The Third Circuit, in Gulfstream III Associates, Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414 (3d Cir.1993), elaborated upon the showing that a party must make to be entitled to an award of attorney's fees for services rendered during a separate, but related, litigation. The court held that "if the plaintiff can prove that the fees and expenses incurred in the other litigation resulted in work product that was actually utilized in the instant litigation, [and] that the time spent on the other litigation was `inextricably linked' to the issues raised in the present litigation, ..., then the district court may include those fees and expenses in its fee award." Gulfstream, 995 F.2d at 420 (quoting Keenan v. City of Philadelphia, 983 F.2d 459, 474 (3d Cir.1992) (upholding fee award's inclusion of hours spent in litigating and in appealing a labor arbitration hearing which was related to § 1983 suit)). In sum, compensation for attorney's fees under § 1988 for work performed in support of an optional administrative proceeding which precedes the filing of a § 1983 suit is the exception and not the rule. The burden is upon the prevailing party to establish that the services for which it seeks fees actually advanced the civil rights litigation.
In this case, plaintiff's counsel argue, in the most conclusory of terms, that every task which they performed while defending plaintiff during the administrative proceeding and the subsequent appeals was necessary to plaintiff's civil right litigation, and thus, is compensable. They essentially contend that, but for their work during the tenure proceeding, there would not have been a settlement of this § 1983 suit. Plaintiff's September 12, 1995 Reply Letter Brief at 5.
This Court, however, previously considered this contention at oral argument. And, in response to the very same argument, the Court expressly instructed counsel to resubmit their request for fees, admonishing them that only a "discrete" portion of the services rendered during the administrative proceedings would be compensable under Webb. The Court further reminded counsel that, to be entitled to attorney's fees under § 1988, it was incumbent upon them to establish a link between the services rendered during the tenure proceedings and plaintiff's § 1983 suit. The Court finds that plaintiff's counsel have failed to meet this burden. Plaintiff's counsel's billing statement suffers from two fundamental flaws. First, the billing statement is over-inclusive, embracing all services which counsel performed prior to the filing of the civil rights complaint, except for those services relating to plaintiff's bias defense.
Second, the billing statement, in many instances, inadequately describes the nature of the services performed, and the amount of time spent performing each of the services. For example, plaintiff seeks compensation for the following services performed on February 12, 1992:
SRC Intra-office conferences with JSS and KS Review text of statement on radio show Telephone call from Association President and client Telephone call from Brian Cige, Esq. 2.75 hours $577.50
Plaintiff's April 12, 1995 Letter Brief, Exhibit 1 at 1.
While counsel's review of plaintiff's statement on the radio show was certainly relevant to plaintiff's § 1983 suit, plaintiff's counsel have failed to set forth the amount of time spent reviewing the statement. Instead, they have lumped it together with other services, providing a total amount of hours for all services performed on that particular day by that attorney. It would be not only impossible, but inappropriate, for this Court to attempt to estimate the amount of time spent reviewing this statement, or the
In addition, the entries regarding the intra-office conference and telephone calls fail to describe what was discussed. In accordance with Webb, the Court is unwilling to assume that every single phone call and every conference was inextricably linked to plaintiff's civil rights litigation. Hence, the Court rules that the fees sought for services performed on February 12, 1992, are noncompensable.
Plaintiff's counsel, however, contend that they should be compensated for the services enumerated in this entry because "[t]he time spent for all of these services ... was necessary and did advance the civil rights litigation." Plaintiff's September 12, 1995 Letter Brief at 2. This explanation, however, is conclusory; it fails to provide a "nexus between the work in the disciplinary proceeding for which fees were requested and the demands of the district court action...." Cullen v. Fliegner, 18 F.3d 96, 106 (2d Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 480, 130 L.Ed.2d 393 (1994).
Plaintiff's counsel rely heavily upon Cullen in support of their contentions, but that reliance is misplaced. In Cullen, the Second Circuit held that the lower court had properly awarded fees incurred during a disciplinary proceeding where counsel had sought only a "`discrete portion' of the fees so incurred." Id. (citation omitted). Here, plaintiff's counsel seek fees for all of the services rendered during the tenure proceedings. The only adjustments which plaintiff's counsel made to the fees sought were to those fees relating to plaintiff's defense challenging the partiality of the Commissioner. Those adjustments were not enough. Unlike in Cullen, the services for which plaintiff's counsel seek fees are anything but "discrete" portions of the work performed; rather, counsel seek fees for the entirety of the services rendered by them prior to the filing of plaintiff's civil rights complaint.
Many of plaintiff's counsel's entries suffer from the same deficiencies as the ones discussed above with respect to the February 12, 1992 entry. Accordingly, the Court finds that the fees listed on Appendix A to this opinion are non-compensable under § 1988.
For the foregoing reasons, plaintiff's motion for attorney's fees pursuant to § 1988 is allowed in the amount of $71,565.85. An appropriate Order shall follow.
This matter having been opened to the Court by Steven R. Cohen, Esq., of Selikoff & Cohen, counsel for plaintiff, David C. Clark, seeking attorney's fees and costs pursuant to 42 U.S.C. § 1988, and the Court having considered the moving papers, and the opposition thereto, and having set forth its reasoning in a Memorandum entered upon this date, this matter having been considered pursuant to Fed.R.Civ.P. 78, and for good cause shown,
IT IS on this 9th day of November, 1995,
ORDERED that plaintiff's motion for attorney's fees is granted in the amount of $69,346.11 and costs in the amount of $2,219.74.
Attorney Hourly RateJoel S. Selikoff $210.00 Steven R. Cohen $210.00 Kenneth A. Sandler $160.00 Michael C. Damm $175.00 Joan E. Peculski $75.00 Kelly C. Cervo $75.00 Timothy J. Kennedy $75.00 Carol H. Sapakie $175.00 See Plaintiff's April 12, 1995 Letter Brief,Exhibit 1 at 33.
Original fee statement $115,524.10 Billing Reduction $ 15,037.60 Adjustments per this Court's directive $ 11,024.65 ___________ Adjusted Fees $ 89,461.85 Fees for Fee Application $ 7,333.38 ___________ Total Fees $ 96,795.23
This entry is adequately detailed to allow a finding that the legal services performed had some relationship to plaintiff's civil rights litigation.