Opinion
CIVIL ACTION NO. 94-T-94-N
June 20, 1996, Decided . June 20, 1996, FILED, ENTERED
For HOOVER WHITE, for himself and on behalf of all other persons similarly situated, JOHN A. DILLARD, for himself and on behalf of all other persons similarly situated, GLENN MOODY, for himself and on behalf of all other persons similarly situated, plaintiffs: Terry G. Davis, Terry G. Davis, P.C., Montgomery, AL. Solomon S. Seay, Jr., Montgomery, AL. Samuel H. Heldman, Joe R. Whatley, Jr., Cooper, Mitch, Crawford, Kuydendall & Whatley, Birmingham, AL.
For RALPH E. BRADFORD, SR., intervenor-plaintiff: Algert S. Agricola, Jr., Wallace, Jordan, Ratliff & Brandt, L.L.C., Montgomery, AL. For CHRISTOPHER BOEHM, intervenor-plaintiff: James McGowin Williamson, Williamson & Williamson, Greenville, AL. For JOHNNY CURRY, JACK WILLIAMS, MARK G. MONTIEL, intervenor-plaintiffs: Albert L. Jordan, Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, AL.
For THE STATE OF ALABAMA, JAMES BENNETT, in his official capacity as Secretary of State for the State of Alabama, defendants: William H. Pryor, Jr., Jeff Sessions, Attorney General, Office of the Attorney General, Alabama State House, Montgomery, AL.
For UNITED STATES OF AMERICA, amicus: Rebecca J. Wertz, U.S. Department of Justice, Civil Rights Division, Washington, DC. Kenneth E. Vines, Redding Pitt, U.S. Attorney, U. S. Attorney's Office, Montgomery, AL. Robert A. Kengle, Susan Barbosa Fisch, United States Department of Justice, Civil Rights Division, Washington, DC. Deval L. Patrick, United States Department of Justice, Civil Rights Division, Special Litigation Section, Washington, DC.
Opinion by: Myron H. Thompson
ORDER
Plaintiffs Hoover White, John A. Dillard, and Glenn Moody filed this lawsuit in 1994 on behalf of a class of African-American electors and resident citizens in the State of Alabama, naming the State and one of its officials as defendants and claiming that the State's system of electing appellate judges violated § 2 and § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. §§ 1973, 1973c (West 1994). Ralph E. Bradford, an African-American elector, and Republican voters Mark G. Montiel, Johnny Curry, and Jack Williams were allowed to intervene as plaintiffs. Shortly thereafter, plaintiffs White, Dillard, and Moody and the State defendants reached a settlement on the plaintiffs' § 2 claim and submitted a proposed consent decree, which was approved by the court. The settlement provided, among other things, that "the governor--based on recommendations from a special nominating committee, composed in a manner to attempt to reflect the interests of most African-American Alabamians--would appoint minority-preferred candidates to a limited number of appellate judgeships". White v. State of Alabama, 867 F. Supp. 1519, 1526 (M.D. Ala. 1994). Plaintiff-intervenors Bradford, Montiel, Curry, and Williams opposed the settlement and appealed to the Eleventh Circuit Court of Appeals, which vacated the entry of the consent decree and remanded the case for further proceedings. White v. State of Alabama, 74 F.3d 1058 (11th Cir. 1996). This lawsuit is now before the court on a motion for the interim award of reasonable attorney's fees and costs on the § 2 claim, filed by plaintiff-intervenors Bradford, Montiel, Curry, and Williams. The plaintiff-intervenors request a total of $ 241,453.37 for attorney's fees and expenses. For the reasons that follow, the court concludes that the motion should be granted and that the plaintiff-intervenors are entitled to recover attorney's fees and expenses in the amount of $ 178,995.87.
The plaintiff-intervenors' fee request may be broken down as follows: fees of $ 238,180 (Algert Agricola - 524.25 hours x $ 275 (trial & appeal) + 32.8 hours x $ 200 (fee petition) = $ 150,728.75; Albert Jordan - 301.5 hours x $ 275 (trial & appeal) + 3 hours x $ 200 (fee petition) = $ 83,512.50; B. Glenn Murdock - 19.35 hours x $ 175 = $ 3,386.25; law clerk - 8.5 hours x $ 65 = $ 552.50) and expenses of $ 3,273.37, for a total of $ 241,453.37.
Under 42 U.S.C.A. § 1973 l(e) (West 1994), courts are authorized to award reasonable attorney's fees to prevailing litigants under the Voting Rights Act. In addition, 42 U.S.C.A. § 1988(b) (West 1994) provides for the awarding of reasonable attorneys' fees to a party prevailing in a claim under 42 U.S.C.A. § 1983 (West 1994). In an order entered on April 23, 1996, the Eleventh Circuit Court of Appeals granted plaintiff-intervenors Bradford, Montiel, Curry, and Williams's motion for attorney's fees--a motion identical to the one filed in this court--and remanded the issue of the amount to this court for determination. Therefore, none of the parties disputes that the plaintiff-intervenors are entitled to fees. This court's task is simply to determine the reasonable amount of fees to be awarded. In their response to the requested fees, the State defendants object to only the hourly rates claimed by the plaintiff-intervenors.
The starting point in setting any attorney's fee is determining the "lodestar" figure--that is, the product of the number of hours reasonably expended to prosecute the lawsuit and the reasonable hourly rate for work performed by similarly situated attorneys in the community. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); accord Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983). The fee applicant bears the burden of "establishing entitlement and documenting the appropriate hours and hourly rates." Norman, 836 F.2d at 1303. After calculating the lodestar fee, the court should then proceed with an analysis of whether any portion of this fee should be adjusted upwards or downwards. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565-66, 106 S. Ct. 3088, 3098, 92 L. Ed. 2d 439 (1986); see also Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987); Hensley, 461 U.S. at 433-34, 103 S. Ct. at 1939-40.
In making the above determinations, the court is guided by the 12 factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). See Blanchard v. Bergeron, 489 U.S. 87, 91-92, 109 S. Ct. 939, 943-44, 103 L. Ed. 2d 67 (1989); Hensley, 461 U.S. at 434 n.9, 103 S. Ct. at 1940 n.9. These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of professional relationship with the client; and (12) awards in similar cases.
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
Reasonable Hours
Algert Agricola represented Bradford in this matter, and Albert Jordan and B. Glenn Murdock represented Montiel, Curry, and Williams. Agricola seeks compensation for 557.05 hours, Jordan seeks compensation for 304.5 hours, and Murdock seeks compensation for 19.35 hours. Jordan also seek compensation for 8.5 hours for a law clerk.
The court considers three Johnson factors--the time and labor required, the novelty and difficulty of the case, and the amount involved and the result obtained--in assessing the reasonableness of the hours claimed by counsel for plaintiff-intervenors Bradford, Montiel, Curry, and Williams. As stated, the State defendants do not object to the reasonableness of the number of hours claimed. In any event, the court has conducted an independent review of the hours claimed to determine if there was any time that should be excluded because it was "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434, 103 S. Ct. at 1939-40. The court is satisfied that the hours listed appear to have been necessary to secure relief in this case. The court further finds that the issues in this lawsuit were difficult, and that the hours expended were reasonable in relation to the difficulty of the issues. Additionally, it is apparent from the Eleventh Circuit's orders vacating the consent judgment and granting the plaintiff-intervenors' fee request that the plaintiff-intervenors were successful in obtaining their desired result.
Plaintiff-intervenors Bradford, Montiel, Curry, and Williams additionally request compensation for the cost associated with litigating the issue of attorneys' fees. The time spent litigating the issue of fees is compensable. Johnson, 606 F.2d at 638. Therefore, the court will award payment and will increase the lodestar amount to reflect work done on litigating fees.
Based on this analysis, the court concludes that the attorneys for the plaintiff-intervenors are entitled to the following hours: Agricola--557.05 hours; Montiel--304.5 hours; and Murdock--19.35 hours.
Prevailing Market Rate
"A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Norman, 836 F.2d at 1299. Agricola and Jordan contend that they are each entitled to $ 275 an hour, and Murdock contends that he is entitled to $ 175 an hour. To determine the prevailing market rate, the court will consider the following Johnson factors: customary fee; whether the fee is fixed or contingent; the novelty and difficulty of the questions; the skill required to perform the legal services properly; the experience, reputation, and ability of the attorneys; time limitations; preclusion of other employment; undesirability of the case; nature and length of professional relationship with the client; and awards in similar cases.
Customary Fee: "The customary fee for similar work in the community should be considered." Johnson, 488 F.2d at 718. Plaintiff-intervenors Bradford, Montiel, Curry, and Williams have submitted affidavits making the general contention that the fee in complex federal litigation cases of $ 275 an hour for attorneys of Agricola's and Jordan's experience is reasonable, and that other attorneys have been awarded that much or more for similar cases. The State defendants argue in their response that customary rates by these same attorneys in such cases with paying clients are significantly lower than $ 275 an hour. Indeed, the defendants submitted affidavits and prior stipulations by Agricola and Jordan in other cases stating that reasonable fees in complex litigation should be between $ 110 to $ 175 an hour, and the defendants therefore maintain that the maximum hourly rate for the plaintiff-intervenors's attorneys should be $ 175 an hour.
The State defendants' principal complaint, however, is that the plaintiff-intervenors have submitted only evidence of lawyers' rates in general and have not submitted any evidence of their own specific "customary" fees. There is no doubt that the prevailing attorney's own customary or usual billing rate is an appropriate factor to be considered by the court; it is, however, not a sole determinative factor. Because "'reasonable fees' … are to be calculated according to the prevailing market rates in the relevant community," Blum v. Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541, 1547, 79 L. Ed. 2d 891 (1984) (emphasis added), the issue is the legal "market rate," not an individual lawyer's rate. See also Norman, 836 F.2d at 1299 ("A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation") (emphasis added); Public Interest Group of New Jersey, Inc. v. Windnall, 51 F.3d 1179, 1185 (3rd Cir. 1995) ("the attorneys' usual billing rate … is not dispositive"). Moreover, at a hearing on the issue of attorney's fees on May 10, 1996, the court gave the State defendants an opportunity to conduct discovery and submit additional evidence regarding Agricola's and Jordan's own customary fees; the defendants have not submitted any additional evidence.
Affidavits were not submitted addressing the customary fees of attorneys with Murdock's skill and experience in similar cases.
Fixed or Contingent Fee: "This factor focuses judicial scrutiny solely on the existence of any contract for fees that may have been executed between the party and his attorney." Medders v. Autauga County Bd. of Educ., 858 F. Supp. 1118, 1127 (M.D. Ala. 1994) (citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. at 723, 107 S. Ct. at 3085). "The fee quoted to the client or the percentage of the recovery agreed to is helpful in demonstrating the attorney's fee expectations when he accepted the case." Johnson, 488 F.2d at 718. In this case, there was no written agreement which would demonstrate the fee expectations of any of the attorneys.
Novelty and Difficulty of the Questions: "Cases of first impression generally require more time and effort on the attorney's part. Although this greater expenditure of time in research and preparation is an investment by counsel in obtaining knowledge which can be used in similar later cases, he should not be penalized for undertaking a case which may 'make new law.' Instead, he should be appropriately compensated for accepting the challenge." Johnson, 488 F.2d at 718.
This case presented extremely complex and novel legal issues involving the legality of a consent decree under the Voting Rights Act and the United States Constitution. Further, the law on the voting rights of minorities is evolving and changing almost daily. See, e.g., Bush v. Vera, 1996 U.S. LEXIS 3882, No. 94-805, 94-806, 94-988, 1996 WL 315857 (U.S., June 13, 1996); Shaw v. Hunt, 1996 U.S. LEXIS 3880, No. 94-923, 94-924, 1996 WL 315870 (U.S., June 13, 1996).
Skill Required to Perform the Legal Services Properly: "The trial judge should closely observe the attorney's work product, his preparation, and general ability before the court. The trial judge's expertise gained from past experience as a lawyer and his observation from the bench of lawyers at work become highly important in this consideration." Johnson, 488 F.2d at 718.
Complex federal civil rights cases require skilled attorneys. The attorneys met this standard and performed the work that was required in a professional manner.
Experience, Reputation, and Ability of the Attorneys: "Most fee scales reflect an experience differential with the more experienced attorneys receiving larger compensation. An attorney specializing in civil rights cases may enjoy a higher rate for his expertise than others, providing his ability corresponds with his experience. Longevity per se, however, should not dictate the higher fee. If a young attorney demonstrates the skill and ability, he should not be penalized for only recently being admitted to the bar." Johnson, 488 F.2d at 718.
Both Agricola and Jordan are experienced attorneys. Agricola has 17 years of legal experience, and Jordan has 15 years of legal experience. Both attorneys have developed strong reputations as attorneys specializing in complex federal and state litigation. No evidence has been submitted on Murdock's experience. Both Agricola and Jordan performed their work very well.
Moreover, as stated, this case was extremely complex, and the work done by Agricola and Jordan was of the highest caliber. More importantly, the court is convinced that their expertise enabled them to prosecute this case very efficiently. Attorneys with less knowledge and experience would have taken many more hours to pursue this litigation. Therefore, Agricola's and Jordan's "efficiency justifies an hourly rate at the high end of the customary range." Gay Lesbian Bisexual Alliance v. Sessions, No. 93- T-1178-N, 843 F. Supp. 1424, (M.D. Ala. June 6, 1996); see also Coleman v. Cannon Oil Company, 911 F. Supp. 510, 515 (M.D. Ala. 1995) ("A lawyer already skilled in the area could demand a higher rate because he or she would be more knowledgeable and could work more efficiently"); Dillard v. City of Elba, 863 F. Supp. 1550, 1553 (M.D. Ala. 1993) (experienced attorneys prosecuted case in fewer hours than inexperienced attorneys would have); Curry v. Contract Fabricators Inc. Profit Sharing Plan, 744 F. Supp. 1061, 1071 (M.D. Ala. 1988) (attorney's "inexperience should be reflected in [lower] … hourly rate"), aff'd, 891 F.2d 842 (11th Cir. 1990).
Time Limitations: Where there has been "priority work that delays the lawyer's other legal work," this factor requires "some premium." Johnson, 488 F.2d at 718. There is no evidence of such limitation here.
Preclusion of Other Employment: This factor "involves the dual consideration of otherwise available business which is foreclosed because of conflicts of interest which occur from the representation, and the fact that once the employment is undertaken the attorney is not free to use the time spent on the client's behalf for other purposes." Johnson, 488 F.2d at 718. There is no evidence to support this factor.
Undesirability of the Case: "Civil rights attorneys face hardships in their communities because of their desire to help the civil rights litigant. … Oftentimes his decision to help eradicate discrimination is not pleasantly received by the community or his contemporaries." Johnson, 488 F.2d at 718. Moreover, civil rights litigation is seen "as very undesirable because it stigmatizes an attorney as a 'civil rights lawyer' and thus tends to deter fee-paying clients, particularly high-paying commercial clients, from seeking assistance from that lawyer." Stokes v. City of Montgomery, 706 F. Supp. 811, 815 (M.D. Ala. 1988), aff'd, 891 F.2d 905 (11th Cir. 1989) (table). The results of such litigation tend to arouse the emotions of all concerned, and frequently the attorneys who bring these cases are the subjects of prolonged and vitriolic hostility. This factor "can have an economic impact on [an attorney's] practice which can be considered by the Court." Johnson, 488 F.2d at 718.
See also Medders, 858 F. Supp. at 1128; Robinson v. Alabama State Dept. of Educ., 727 F. Supp. 1422, 1428 (M.D. Ala. 1989), aff'd, 918 F.2d 183 (11th Cir. 1990) (table).
This was a somewhat undesirable case for several reasons. In general, civil rights litigation is seen as undesirable for the reasons described above. In addition, this was a politically-charged case that involved the Alabama judiciary and executive branches and was implicated in several statewide elections in 1994.
Nature and Length of Relationship with Client: There is no evidence that Bradford had any prior professional relationship with Agricola; there is some evidence that Montiel, Curry, and Williams had a prior professional relationship with Jordan.
Awards in Similar Cases: "The reasonableness of a fee may also be considered in the light of awards made in similar litigation within and without the court's circuit." Johnson, 488 F.2d at 719. The court has awarded non-contingent fees in the range of $ 125 to $ 290 an hour in other civil rights cases. See, e.g., Gay Lesbian Bisexual Alliance, 1996 U.S. Dist. LEXIS 8547, No. 93-T-1178-N, F. Supp. at ; Reynolds v. Alabama Dep't of Trans., 1996 U.S. Dist. LEXIS 9331, No. 85-T-665-N. F. Supp. , , (M.D. Ala. 1995); Coleman, 911 F. Supp. at 516; Lee v. Randolph County Bd. of Ed., 885 F. Supp. 1526, 1531-32 (M.D. Ala. 1995); James v. City of Montgomery, 1995 U.S. Dist. LEXIS 6143, 1995 WL 271138 (M.D. Ala. April 19, 1995); Stokes v. City of Montgomery, 157 F.R.D. 514, 519 (M.D. Ala. 1994); City of Elba, 863 F. Supp. at 1554; Medders, 858 F. Supp. at 1129; Wyatt v. Martin, 1991 U.S. Dist. LEXIS 21578, no. 3195- N, 1991 WL 640065, at *3 (M.D. Ala. Dec. 17, 1991), aff'd, 985 F.2d 579 (11th Cir. 1993) (table); Robinson v. Alabama State Dept. of Educ., 727 F. Supp. 1422, 1428 (M.D. Ala. 1989), aff'd, 918 F.2d 183 (11th Cir. 1990) (table); Stokes, 706 F. Supp. at 815.
The court is of the opinion, based on these criteria, that Agricola is entitled to $ 200 an hour, Jordan is entitled to $ 200 an hour, and Murdock is entitled to $ 150 an hour for the few hours he put in. The court particularly considers the relative experience and reputations of Agricola and Jordan; both are well-known attorneys experienced in complex litigation.
Law Clerk Hours and Rate
Plaintiff-intervenors Montiel, Curry, and Williams seek compensation for 8.5 hours of work completed by a law clerk, or paralegal. A prevailing party may be compensated for work done by law clerks or paralegals only to the extent that it is "traditionally done by an attorney," Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. Unit B 1982). The State defendants do not object to the inclusion of 8.5 hours of law clerk time. Therefore, the court will add $ 510.00 (8.5 hours of law clerk time at a rate of $ 60 an hour) to the total attorney's fee award. See, e.g. Reynolds, No. 85-T-665-N. F. Supp. at ($ 65 an hour awarded for paralegal work); Coleman, 911 F. Supp. at 517 ($ 50 to $ 70 an hour awarded for paralegal work).
In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the post-September 30, 1981, decisions of Unit B of the former Fifth Circuit.
The unadjusted lodestar for an attorney consists, as stated, of the product of the attorney's compensable hours multiplied by the prevailing market fee. The lodestars for Bradford, Montiel, Curry, and Williams's counsel are therefore as follows: Agricola - 557.05 hours x $ 200 = $ 111,410.00; Jordan - 304.5 hours x $ 200 = $ 60,900.00; Murdock - 19.35 hours x $ 150 = $ 2,902.50; law clerk - 8.5 hours x $ 60 = $ 510.00. The total is $ 175,722.50.
An adjustment of the lodestar either upward or downward is unwarranted.
Expenses
The plaintiff-intervenors seek $ 3,273.37 for expenses incurred in connection with the litigation. With the exception of routine overhead office expenses normally absorbed by the practicing attorney, all reasonable expenses incurred in case preparation, during the course of litigation or as an aspect of settlement of the case, may be taxed as costs; the standard of reasonableness is to be given a liberal interpretation. Loranger v. Stierheim, 3 F.3d 356, 363 (11th Cir. 1993); NAACP v. City of Evergreen, 812 F.2d 1332, 1337 (11th Cir. 1987); Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir. 1983).
The State defendants do not object to payment of expenses incurred by the plaintiff-intervenors. These include postage, telephone, mileage and computerized research costs, and they total $ 3,273.37. The expenses appear to be reasonable, and the court therefore determines that they are recoverable.
Accordingly, for the above reasons, it is ORDERED that the motion for interim award of attorney's fees and costs, filed by plaintiff-intervenors Ralph E. Bradford, Mark G. Montiel, Johnny Curry, and Jack Williams on February 16, 1996, is granted, and that these plaintiff-intervenors shall have and recover from defendants State of Alabama and James Bennett the sum of $ 175,722.50. for attorney's fees and $ 3,273.37 for expenses, for a total amount of $ 178,995.87.
DONE, this the 20th day of June, 1996.
Myron H. Thompson
UNITED STATES DISTRICT JUDGE