Opinion
Civil Action No. 95-4079
January 29, 2003
MINUTE ENTRY
This is a civil rights action, pursuant to 42 U.S.C. § 1983. On October 22, 2002, after a trial on the merits the jury returned a verdict in favor of Plaintiff, finding that Defendants retaliated against him for his accusations of sexual harassment. Plaintiff was awarded damages in the amount of $125,450, later reduced by $8,500, for a final total award of $116,950. Judgment was entered on October 24, 2002. Before the Court is Plaintiff's Motion for an Award of Attorney's Fees and Costs, pursuant to 42 U.S.C. § 1988, in the amount of $43,627.50 in fees (for 193.9 hours of work) and $166.50 in costs, reflecting a total amount of $43,794.
This figure incorporates the additional sum of $5,670 representing an additional 25.2 hours at the same hourly rate of $225 per hour, requested in Plaintiff's Supplemental Motion for an Award of Attorney's Fees and Costs filed on January 14, 2003. (Rec. Doc. 69). The government opposes this supplement only to the extent should liability of the defendants be overturned by the trial judge or an appellate court. (Rec. Doc. 71). The total figure was calculated as follows: $37,957.50 (for 168.7 hours of work) included in the original motion plus $5,670 (for 25.2 hours of work included in the supplemental motion) equals $43,627.50 for 193.9 hours of work at $225 per hour.
I. Certification
The award of attorney's fees and costs in a civil rights case is well established by the Supreme Court of the United States. See Missouri v. Jenkins, 491 U.S. 274 (1990); Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 483 U.S. 711 (1987); and Blum v. Stevenson 465 U.S. 996 (1984). There is no opposition to such an award in this case, generally. However, Defendants' oppose an award of attorney's fees and costs with respect to: (1) work done in pursuit of any civil service proceeding; and (2) deference :o entry of judgment pending possible reversal of the judgment on liability of Defendants by the trial court or appellate court.
The Court considered Defendants' post-trial motions, pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure, and by Minute Entry dated December 23, 2002, the Court denied Defendants' Motion for Judgment as a Matter of Law or New Trial. As such, Defendants' opposition with respect to the trial court is moot.
(1) Work done in pursuit of the civil service proceeding:
Defendants oppose an award of attorney's fees and costs for Plaintiff's listed activities beginning November 22, 1994 through September 20, 1995, totaling 32.7 hours of work, because that time reflected work accomplished in pursuit of Plaintiff's civil service appeal. On December 23, 2002, the Court ordered Plaintiff to respond to Defendants' objection for an award of attorney's fees incurred in this specific pursuit.
"On its face, § 1988 does not authorize a court to award attorney's fees except in an action to enforce the listed civil rights laws." North Carolina DOT v. Crest Street Community Council, Inc., 479 U.S. 6 (1986). However, as interpreted, § 1988 permits a court hearing a civil rights claim covered by § 1988 to award attorney's fees for time spent on administrative proceedings to enforce the civil rights claim prior to the litigation. See id., citing New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 66, n. 6 (1980) "Moreover, even if the prior proceeding is not a `proceeding to enforce' one of the § 1988 civil rights laws, the `discrete portion of the work product from the administrative proceedings' that `was both useful and of a type ordinarily necessary to advance the civil rights litigation to the stage it reached before settlement' can be part of the attorney's fees awarded under § 1988." Id., quoting, Webb v. Dyer County Board of Education, 471 U.S. 234, 243 (1985); see also Hensley v. Eckerhart, 461 U.S. 424 (1983).
In response to the Court's December 23, 2002 Order, Plaintiff has detailed 23.7 hours which were "useful" and "ordinarily necessary" out of the total 32.7 hours, to which Defendants object. (See Rec. Doc. 66). Plaintiff voluntarily deleted those items which were "particular to the disciplinary proceeding and could not be transferred to the district court action." (See id., at p. 3, n. 5, quoting Cullen v. Fleinger, 18 F.3d 96, 106 (2d Cir. 1994)).
On page 4 Plaintiff's supplemental memorandum and in the attached Affidavit of Ronald Wilson (Ex. P-1) the total number of hours that qualify under the"useful" and "ordinarily necessarily" standard are incorrectly stated as 27.6. This figure is in error. The Court has confirmed with Counsel for Plaintiff that this is a mathematical and/or typographical error.
The specific 23.7 hours concern interviews of Plaintiff Gregory Johnson, letters written by Mr. Johnson, review of letters and documents from Mr. Johnson, including the relevant sexual harassment policy, preparation for the civil service hearing, as well as time spent at the hearing itself. (Id.). Upon review of the motions, memorandum, the record as a whole and the applicable law, the Court determines that Counsel's 23.7 hours of work were essential not only for the civil service proceedings, but also, to the federal action as well. Therefore, Counsel for Plaintiff is justified in receiving compensation for those 23.7 hours spent working on the civil service appeal, because this time was specifically "useful" and "ordinarily necessary" to the subsequent federal lawsuit pursuant to § 1983.
Although technically Defendants object to an award of costs associated with the civil service appeal, there is no request for an award of such costs. Analysis of the costs incurred reveal that all costs are associated with this federal lawsuit. The sum of $166.50 requested includes $120 for filing the Complaint, $11.50 for certified mail of Complaint to Defendants and $35 for duplication of Bench Books.
(2) Deferring judgment pending post-trial motions and appeal
As noted above, the Court has denied Defendants' post-trial motions. Thus, the question of whether the Court should consider deferring entry of judgment on the issue of attorney's fees and costs with respect to post-trial motions is moot. On January 8, 2003, Defendants filed a Notice of Appeal. Defendant provides no justification for the Court to defer entry of judgment of an award of attorney's fees and costs pending appeal, nor is the Court aware that any justification exists.
II. Quantum
Plaintiff submits that he spent a total of 193.9 hours preparing for and litigating the trial on the merits in the above captioned matter. (See Rec. Doc. 54, Exs. P-1 P-2). These 193.9 hours are unopposed by Defendants except as discussed above. The Court finds that Plaintiff is entitled 23.7 of the objected to 32.7 hours devoted to the civil service proceedings related to this matter. As a result, Plaintiff's initial demand must be reduced by 9 hours (32.7 minus 23.7). Therefore, Plaintiff is entitled to an award of attorney's fees for 184.9 hours compensation (193.9 minus 9).
Plaintiff' Counsel, Ronald Wilson submits that an hourly rate of $225 per hour is appropriate and necessary to compensate him for his work in this case. See Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974) (setting forth twelve factors to be considered to determine the loadstar); see also Missouri v. Jenkins, 491 U.S. 274 (1990) (finding that application of the current rate appropriate to compensate for payment delay) Defendants offer no objection to Plaintiff's proposed rate. Upon review of the record, the supporting affidavits attesting to Mr. Wilson's reputation and experience and the applicable law, the Court finds that a rate of $225 per is appropriate. Therefore, Plaintiff is entitled to attorney's fees for 184.9 hours of work at a rate of $225 per hour, amounting to a total award for attorney's fees of $41,602.50 plus $166.50 for costs incurred, thus amounting to a final total award of attorney's fees and costs of $41,769.
Accordingly, IT IS ORDERED that Plaintiff is awarded attorney's fees and costs of $41,769. Judgment shall be entered accordingly.