As Modified on Denial of Rehearing and Rehearing En Banc October 19, 1982.
ARNOLD, Circuit Judge.
In Avalon Cinema Corp. v. Thompson, 667 F.2d 659 (8th Cir. 1981) (en banc), we held that a zoning ordinance of the City of North Little Rock, Arkansas, as applied to plaintiff's proposed "adult" movie house, violated the First Amendment of the Constitution of the United States, as applied to the states and their instrumentalities by the Fourteenth Amendment. We directed plaintiff, as the prevailing party, to submit affidavits and other materials in support of its request for an allowance of attorneys' fees and costs under the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. § 1988. It has done so, and the appellees, whom we shall call "the City," have responded. The question before us is the appropriate amount of fees and costs allowable for services rendered by plaintiff's lawyers in this Court. It will be for the District Court, on remand, to fix the proper compensation for services rendered before it.
Plaintiff's position is in some respects not contested by the City. We will confine this opinion to the issues in material dispute.
Plaintiff asks us to award a total of $29,702.07 in fees and expenses. Compensation is sought for the services of John Wesley Hall, Jr., of North Little Rock, and for the services of John H. Weston, David M. Brown, G. Randall Garrou, Robert A. DePiano, and Tina Erlbaum of Brown, Weston & Sarno, of Beverly Hills, California, and Houston, Texas. The amounts requested can be tabulated as follows:
For John Wesley Hall, Jr., 10.05 hours at $70.00 per hour = $ 703.50 12.6 hours at $75.00 per hour
1= 945.00 ------ Total fees $ 1,648.50 For John H. Weston, 87.7 hours in 1981 at $170.00 = $14,909.00 6.8 hours in 1982 at $190.00 = 1,292.00 ---------- $16,201.00 For David M. Brown, 11.4 hours in 1981 at $170.00 = $ 1,938.00 For G. Randall Garrou, 15.3 hours in 1981 at $125.00 = $ 1,912.50 For Robert A. DePiano, 16.1 hours in 1981 at $85.00 = $ 1,368.50 6.5 hours in 1982 at $85.00 2= 552.50 14.3 hours in 1982 at $95.00 = 1,358.50 ----------- $ 3,279.50 For Tina Erlbaum, 29.3 hours in 1981 at $60.00 = $ 1,758.00 =========== Total fees for Brown, Weston, & Sarno $26,737.50
Counsel's fee request is for payment at the regular hourly rate of the various lawyers, set out above, for the number of hours actually worked, all of which are described in copious detail in affidavits filed with us. No request is made that the fee be enhanced, or any multiplier applied, because of the extraordinary nature of the case. The City does not question that the hours claimed were actually spent on the case. It raises three main objections to plaintiff's request: (1) that there is "a certain amount of duplication of effort and inefficiency"
We have examined the affidavits and briefs of counsel in light of our familiarity with this appeal, which was heard and decided first by a panel of three judges and later by the Court en banc. We find no duplication or inefficiency on the part of plaintiff's lawyers. The case was argued twice and is an important one, as shown by this Court's decision to grant rehearing en banc, a rare procedure. It is not unreasonable for more than one lawyer or law firm to appear in such a case. Mr. Hall's services were predominantly performed as local counsel and were considerably less extensive than those of Mr. Weston's firm. The various lawyers in Brown, Weston and Sarno who worked on the case divided their time appropriately among research, drafting, supervision, preparation for argument, and argument in open court. We decline to disallow any of the claimed hours on the ground of duplication.
The City next specifically objects to 2.9 of Mr. Weston's hours. The Weston affidavit shows one hour for drafting a motion for leave to file a petition for rehearing en banc longer than the normal 15 pages, and 1.9 hours for drafting a motion for leave to make a correction in the previously filed petition for rehearing en banc. We agree that the City should not have to pay for this time. The rules provide for motions for leave to file overlength papers, and we granted plaintiff's motion, displaying, perhaps, too much indulgence. But the extra pages added nothing essential, and we decline to impose their cost on defendants. Time spent correcting a mistake should likewise not be taxed against the adverse party, which had nothing to do with the error. The 2.9 hours will be disallowed.
The computation of allowable attorneys' fees under 42 U.S.C. § 1988
In the instant case our task is considerably simplified by the large measure of agreement between the parties. The City does not question Mr. Hall's hourly rates. Plaintiff does not ask for the use of a multiplier, nor that the fee be increased above the lodestar figure by reason of any of the Johnson factors. The City does not suggest that the Johnson factors should cause a decrease in the fee. The City does claim, however, that the hourly rates sought by Mr. Weston ($170 in 1981, $190 in 1982) and his partners or associates are excessive. In large part, we agree.
Plaintiff stresses the language of Zoll v. Eastern Allamakee Community School Dist., supra, 588 F.2d at 252, that the "minimum award should generally be not less than the number of hours claimed times the attorney's regular hourly rate." (Emphasis supplied.) We do not read this phrase to require us to compute fees mechanically and without question on the basis of the hourly fee that a lawyer regularly charges in fact. It remains our duty to fix a fee that is reasonable and, as part of that process, to determine a reasonable hourly rate. Automatic acceptance of a lawyer's customary charge would be an abdication of our duty to supervise the conduct of the bar and do justice to the losing as well as to the winning side. "This court does not accept the attorneys' usual billing rate as definitively fixing their billing rates for this litigation." Stanford Daily v. Zurcher, 64 F.R.D. 680, 684 (N.D.Cal.1974), aff'd, 550 F.2d 464 (9th Cir. 1977), rev'd on other grounds, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978).
In general, a reasonable hourly rate would be the ordinary fee "for similar work in the community," Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d at 718. "The term `reasonable hourly rate' has been defined as the `hourly amount to which attorneys in the area would typically be entitled for a given type of work on the basis of an hourly rate of compensation'" Jorstad v. IDS Realty Trust, supra, 643 F.2d at 1313, quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 471 (2d Cir. 1974) (emphasis ours). This does not mean that out-of-town counsel must always be limited to lower local rates. It may not always be possible to find counsel in or near the locality of the case who are able and willing to undertake difficult and controversial civil-rights litigation. If "a plaintiff can show he has been unable through diligent, good faith efforts to retain local counsel, attorney's
Plaintiff seems to recognize these general principles, but seeks to justify Mr. Weston's $170 hourly rate on the ground that "no counsel competent and experienced in this area of the law were available in the Little Rock area." Appellant's Reply to Appellees' Response, p. 19. We disagree. The bar of Arkansas
In our opinion, the following hourly rates are reasonable and should be allowed for plaintiff's counsel:
Rate Rate Requested Allowed --------- ------- Mr. Hall $70, $75 $70, $75 Mr. Weston $170, $190 $100, $110 Mr. Brown $170 $100 Mr. Garrou $125 $70 Mr. DePiano $85, $95 $60, $65 Ms. Erlbaum $60 $40
We in no way deprecate plaintiff's right to employ counsel of its own choice. Nor is there any doubt that Mr. Weston, who came to the bar 12 years ago, and his firm performed with a high degree of skill and learning. Counsel will still be contractually entitled to whatever fee they and plaintiff agreed to, less, presumably, fees taxed against the City. But our task is to fix a reasonable fee and, in doing so, to be mindful of Congress's purpose to encourage the enforcement of constitutional rights by awarding "fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys." S.Rep.No.94-1011, supra, at 6, U.S.Code Cong. & Admin.News 1976, p. 5913. We think the hourly rates set out above meet this test.
Accordingly, we make the following award of fees and expenses to plaintiff for work done by counsel before this Court:
For Mr. Hall $1,648.50 plus expenses 117.47 --------- $1,765.97 For Mr. Weston 84.8 hours in 1981 at $100.00 = $8,480.00 6.8 hours in 1982 at $110.00 = 748.00 --------- $9,228.00 For Mr. Brown 11.4 hours at $100.00 = $1,140.00 For Mr. Garrou 15.3 hours at $70.00 = $1,071.00 For Mr. DePiano 22.6 hours at $60.00 = $1,356.00 14.3 hours at $65.00 = 929.50 --------- $2,285.50 For Ms. Erlbaum 29.3 hours at $40.00 = $1,172.00 Total fees for Brown, Weston, & Sarno = $14,896.00 plus expenses = 2,847.10 __________ $17,743.10 Mr. Hall's total = 1,765.97 __________ Grand total of fees and expenses allowed = $19,509.07
It is so ordered.