EAJA Rate Suffices In “Straightforward Case”

Kholyavskiy v. Schlecht, 2007 U.S. Dist LEXIS 9667 (Feb. 9, 2007)

A trial court in the Eastern District of Wisconsin found that plaintiff, whose habeas action hastened his release from detention by Immigrations and Customs Enforcement, was a prevailing party entitled to fees pursuant to the Equal Justice to Access Act (EAJA).  EAJA authorizes fees not to exceed $125 per hour unless the court cites a “special factor” justifying an increase. Counsel claimed that the prevailing rate for immigration attorneys with his qualifications is higher than $125, but the court declined to award fees at a higher rate because “this was a relatively straightforward habeas case, which did not require significant specialized knowledge.”   

Multiplier Not Justified In Non-Exceptional Personal Injury Case

Progressive Express v. Schultz, 2007 Fla. App. LEXIS 2611 (Feb. 23, 2007)

This relatively small personal injury case in Florida produced an involved dispute over the amount of the attorney’s fees award. The trial court approved an award based on a lodestar of $77,500 and applied a multiplier of 2.5, resulting in an award of $193,750. Defendant contested the award on several grounds. Defendant’s attorney’s fees expert opined that the hours spent were excessive. Defendant also argued that the hourly rate was too high, and at the fees hearing defense counsel testified that the only time he has billed $400 per hour (the rate billed by plaintiff’s counsel in the fees petition) is when he’s testified as an expert witness on attorney’s fees for other lawyers. However, while expressing reservations, the court of appeals did not find an abuse of discretion as to the calculation of the lodestar. The defendant also objected to the multiplier, and here the court of appeals agreed.  Noting that it is not difficult to find counsel in personal injury suits, and that there was nothing remarkable about this case, the court struck down the multiplier. 

Prevailing On One Issue Supports Full Award

J.S. v. Crown Point Central School District, 2007 U.S. Dist. LEXIS 9455 (Feb. 9, 2007) 

Plaintiff prevailed with respect to only one of three issues in an administrative hearing and, accordingly, defendant objected to a fee award that compensated counsel for his work related to all three issues.  However, the judge from the Northern District of New York disagreed, because although plaintiff “may have prevailed on only one of the three issues . . . she prevailed on the most important claim” and “the three issues are, to some extent, interrelated.”

Itemize Hours On Fee Request

McBride v. Prudential Insurance, 2007 U.S.Dist. LEXIS 9665 (Feb. 9, 2007)

This opinion by a trial court in the Western District of Arkansas serves as a reminder to attorneys to specify the work done and, in particular, to distinguish the work by attorneys and paralegals respectively.  The court complained that “it is impossible to tell from the motion which tasks were performed by an attorney, and which by a paralegal.  There is only [a] bare assertion” about the overall hours worked by each. The court, without explanation, reduced the requested hourly rate for the attorney by 40% and for the paralegal by 50% -- perhaps, in part, because he was annoyed by the failure to specify the hours worked.

Fess Governed By Settlement Terms

Devera v. Smithsonian, 2007 U.S. App. LEXIS 3142 (Feb. 12 2007)

The Federal Circuit rejected a party’s contention that attorney’s fees agreed to as part of a settlement should have been paid to him, not his attorney, since he paid his attorney during the course of the dispute.  The Federal Circuit noted that “the settlement agreement was explicit that the attorney fees be paid directly to [plaintiff’s] attorney.”    Accordingly, any fee dispute between plaintiff and his attorney stemming from alleged double billing is between them, “and is not properly the subject of this appeal.” 

No Section 1988 Fees For State Claim

Engquist v. Oregon Dep’t of Agriculture, 2007 U.S. App. LEXIS 2787 (Feb. 8)

Plaintiff prevailed at trial on both state claims and federal constitutional claims, and was awarded attorney’s fees pursuant to 42 U.S.C. Sec. 1988.  The Ninth Circuit reversed the judgment on the constitutional claims and, as a result, vacated the award of attorney’s fees.  The court of appeals reiterated its holding in an earlier case that a plaintiff who succeeds on a state claim but not on federal constitutional claims is not a prevailing party for Section 1988 purposes. 

Letters Constitute Conference Under LHWCA

Newport News Shipbuilding v. Director, 2007 U.S. App. LEXIS 2620 (Feb. 7)

Counsel sought fees for plaintiff’s recovery of disability benefits in his suit pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA).  Under the fees provision of the Act, 42 U.S.C. 928(b), several conditions must be satisfied, including the conduct of an “informal conference.”  The Fourth Circuit held that an exchange of letters among plaintiff, his employer, and the District Director constituted the functional equivalent of an informal conference. 

Injunction Supports Fee Award

Virdi v. Dekalb County School District, 2007 U.S. App. LEXIS 2564 (Feb. 6, 2007)

An Asian-American architect’s suit alleged that defendant School District discriminated against him on the basis of race when awarding architectural contracts.  Plaintiff also alleged that defendant’s formal hiring program, which favored African Americans at the expense of other minorities, was facially unconstitutional. The trial court granted summary judgment for defendant.  The Eleventh Circuit affirmed summary judgment with respect to the claim of intentional discrimination but held that the program was indeed facially unconstitutional. On remand, the trial court denied plaintiff’s request for attorney’s fees, holding that plaintiff was not a prevailing party under 42 U.S.C. 1988 because the injunctive relief did not result in him receiving a contract. The Eleventh Circuit reversed.  Noting that the test for prevailing party is “permissive” under Sec. 1988, the Court held that the decision striking down defendant’s hiring program removed an obstacle to plaintiff obtaining a contract in the future. That altered the legal relationship between the parties and constituted a direct benefit to plaintiff. Moreover, the Court noted, “we have repeatedly held that plaintiffs who secure injunctions against various forms of discrimination are prevailing parties under section 1988(b).” 

Defendants And Section 1988 Fees

Redwood v. Dobson, 2007 U.S. App. Lexis 2606 (Feb. 7, 2007). 

In denying a defendant’s requested fee award under 42 U.S.C. 1988, the Seventh Circuit noted that a defendant seeking such an award has a “tough row to hoe” because this fee provision is “asymmetric in plaintiffs’ favor.”  Defendants qualify for such an award only if the suit is frivolous or vexatious.  Here, the court of appeals found plaintiff’s suit quite week, but held that denial of fees to defendant did not constitute an abuse of discretion.

Limited Role Not Basis For Reducing Hourly Rate

Ridley v. Costco Wholesale, 2007 U.S. App. LEXIS 2493 (February 5, 2007)

In this Title VII case, the trial court reduced an attorney’s hourly rate from $375 to $300, citing counsel’s “limited role” in the litigation. The Third Circuit reversed, because an attorney’s limited role will be reflected in the number of hours billed (or lack thereof) and is unrelated to the reasonable rate. With respect to the latter, counsel submitted supportive affidavits from experienced civil rights practitioners, and the defendant offered no evidence to rebut the reasonableness of the proposed rate. In such a situation, the Third Circuit held, a trial court has no discretion to adjust a requested rate downward.

The Third Circuit also reversed the trial court’s denial of fees for work before the Pennsylvania Human Rights Commission. Because plaintiff did not succeed in the administrative proceedings, the trial court found that he was not a prevailing party entitled to fees with respect to that aspect of the litigation. The Third Circuit held that the party, by winning a verdict in federal court, qualified as a prevailing party under 42 U.S.C. 1988. The administrative hearings were required in order for plaintiff to bring his claims to federal court, and therefore part of his overall success. Accordingly, work performed for such hearings is compensable. The trial court erroneously cited N.Y. Gaslight Club v. Carey, 447 U.S. 54, 71 (1980), as justifying the denial of fees, but in Gaslight the Court held only that success before an administrative agency justifies a fee award, not that success is required.