Fees Under 33 U.S.C. § 928

Newport News Shipbuilding and Dry Dock Co. v. Director, Office of Workers'
Compensation Programs, 2006 U.S. App. LEXIS 30534 (4th Cir. Dec. 13, 2006):

Plaintiff's employer paid medical benefits but refused to pay disability
benefits following plaintiff's knee surgery, claiming that the surgery resulted
from a 1999 injury and thus disability benefits were time-barred. After an
informal claims examiner found that the injury occurred in 2001 and benefits
were not time-barred, the employer still refused to pay. Plaintiff appealed to
an administrative law judge, who ordered the company to provide benefits and
awarded attorney's fees under 33 U.S.C. § 928(a). A Benefits Review Board of
the U.S. Dept. of Labor affirmed the ALJ's decision. On appeal, the Fourth
Circuit held that fees were not appropriate under § 928(a), which only
authorizes fees when the employer "declines to pay any compensation" -- the
employer had voluntarily paid medical benefits. But the Court held that fees
were appropriate under § 928(b), which authorizes fees in cases where the
employer initially pays compensation but "thereafter a controversy develops
over the amount of additional compensation, if any, to which the employee may
be entitled." 

Injunctive Relief Supports Fee Award

Audi AG v. D'Amato, 2006 FED App. 0439P (6th Cir. Nov. 27, 2006)

Examining a fee award pursuant to 15 U.S.C. §1117(a), the Sixth Circuit rejected defendant's argument that the award was improper because plaintiff had not recovered monetary damages.  Noting that injuctive relief is the remedy of choice for trademark actions, the Court found that the district court's granting of such relief amounted to more than de minimis success for plaintiff.  Accordingly, the Court affirmed the fee award. 

Fee-Sharing With Non-Profits Allowed

Inmates of the R.I. Training Sch. v. Martinez, 2006 U.S. Dist. LEXIS (D.R.I. Dec. 6, 2006)

Plaintiffs, classes of children incarcerated at a training school, along with the ACLU, sued a state agency to improve conditions at the school. The parties entered into a consent decree, and the court awarded attorneys’ fees under 42 U.S.C. § 1988. However, defendants withheld fees from the ACLU, citing state disciplinary rules as well as a statutory provision (subsequently repealed but appicable retroactively) prohibiting fee-sharing between lawyers and non-lawyers. These rules and the statute bar a volunteer attorney from sharing her legal fees with a nonprofit organization she represents. The ACLU argued that the prohibition on fee-sharing with nonprofits violated its First Amendment rights by restricting its pursuit of civil rights litigation.  While the Court expressed agreement with this reasoning, it leaned more on the Supremacy Clause, emphasizing that the purpose of § 1988 was to attract competent counsel to pursue civil rights litigation. Thus, the  statutory provision barring fee-sharing was unconstitutional. As for the disiplinary rules, the Court noted its own ultimate authority to supervise the attorneys that come before it. Accordingly, the Court granted the ACLU’s motion to approve the payment and disbursement of attorney’s fees. 

Plaintiff Must Present Evidence of Market Rate

Carson v. Billings Police Dep't,  2006 U.S. App. LEXIS 29997 (9th Cir. Dec. 7, 2006)

Plaintiff prevailed in a sex discrimination suit against a police department.  The district court awarded attorney’s fees of roughly $86,000 based on a $150 per hour fee. Plaintiff, who had requested $123,000 based on an hourly fee of $205, appealed. The 9th Circuit affirmed. It noted that plaintiff offered no evidence of the prevailing market rate; instead, plaintiff’s attorney merely stipulated his own rate and qualifications. By contrast, the defense submitted several affidavits in opposition, all suggesting that the prevailing market rate was no more than $150 per hour. Thus, this case illustrates the value of procuring an attorney's fees expert to serve as an expert witness for both plaintiffs and defendants where a fee request is contested.

Limited Recovery Under PLRA

Pearson v. Welborn,  2006 U.S. App. LEXIS 30110 (1st Cir. Dec. 8, 2006)

A maximum security inmate filed suit against prison workers for issuing an improper disciplinary sanction. The jury found the sanction unjustified.  However, the trial court limited recovery to $1 in nominal damages.  After the trial, plaintiff moved unsuccessfully for a declaratory judgment and  attorney’s fees. The district court held that declaratory relief was not in order, and that attorney’s fees were limited to 150% of recovery, or $1.50 under the Prison Litigation Reform Act (PLRA). Pearson appealed to the 7th Circuit. He argued that he is entitled to declaratory relief and, accordingly, the attorney’s fees cap does not apply as it is limited to situations in which plaintiff receives only a monetary award. The Court rejected Pearson’s contentions, holding that a declaratory judgment would do little more than reiterate the jury’s holding; because Pearson received only monetary relief, the fee award was indeed limited to $1.50 by the PLRA.

Immigration Law Specialty Doesn't Merit Enhancement

Nalan v. Chertoff et. al, 2006 U.S. Dist. LEXIS 82795 (D. Mass. Nov. 14, 2006)

Plaintiff filed suit against the U.S. Department of Homeland Security and the U.S. Citizenship and Immigration Services after years of waiting for a determination on his naturalization application.  The court eventually granted plaintiff's application for naturalization and he sought a fee award under the  Equal Access to Justice Act (EAJA).  The Court held that plaintiff was entitled to fees under the EAJA, but refused his request for fees exceeding the statutory maximum rate of $125 per hour. While the EAJA allows an enhanced rate for special factors, such as a distinctive knowledge or specialized skill, the Court declined to find that practice of immigration law is a special skill within the meaning of the statute. This position echoed that of the Ninth Circuit in Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) and rejected a Pennsylvania Court’s holding in Harriot v. Ashcroft, 277  F. Supp. 2d 538, 546-47 (E.D. Pa. 2003).

What's Success?

Lippoldt v. Cole, 2006 U.S. App. LEXIS 27470 (10th Cir. Nov. 7, 2006)
Plaintiff sued city officials and sought attorney’s fees pursuant to 42 U.S.C. §1983 for defendants’ refusal to grant her parade permits. The lower court rejected the fee request, finding that plaintiff had attained only “formal” success when it received one dollar in damages and the court denied its motion for a permanent injunction. The Tenth Circuit reversed. In measuring plaintiff’s success, the lower court should have considered that plaintiff prevailed on its core claim that defendants violated its First Amendment rights. Additionally, the lower court should have considered the public
importance of the litigation and its implications for future permits.