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Noble v. Barnhart, 2007 U.S. App. LEXIS 9701 (Apr. 25)
An attorney’s fees award pursuant to the Equal Access to Justice Act (EAJA) is appropriate only if the government’s position is not “substantially justified.” 28 U.S.C. 2412(d)(1)(A). Not only is this standard difficult to meet, but, as the Sixth Circuit emphasized in this case, the trial court’s determination must be reviewed deferentially.
Black v. Astrue, 2007 U.S. App. LEXIS 10192 (Apr. 24)
After winning social security benefits, plaintiff sought attorney’s fees in an amount dictated by his contingency fee agreement. However, the magistrate judge reduced the award, finding it excessive based on “a lodestar-type calculation.” The Ninth Circuit reversed. Relying on the Supreme Court decision in Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the Ninth Circuit held that focus on the lodestar is inappropriate under 42 U.S.C. 406(b)(1)(A). The proper analysis is to “consider the reasonableness of the fees sought, in light of the contingency fee agreement and the factors bearing upon reasonableness but without primary focus on a lodestar calculation.”
Staley v. Harris County, 2007 U.S. App. LEXIS 9296 (Apr. 24)
After dismissing an appeal as moot, the Fifth Circuit clarified that this determination did not render an attorneys’ fees award inappropriate. The finding of mootness “neither precludes nor is precluded by an award of attorneys’ fees. The attorneys’ fees question turns instead on a wholly independent consideration: whether plaintiff is a prevailing party.” The court distinguished the Supreme Court case of Buckhannon v. West Virginia, because plaintiff, “unlike the plaintiffs in Buckhannon Board, prevailed in the district court.” Accordingly, plaintiff was entitled to fees, and the court of appeals remanded for the determination of an appropriate fee award.
Neighborhood Association v. County of Albany, 2007 U.S. App. LEXIS 9300 (Apr. 24)
Though this litigation involving the Voting Rights Act (VRA) was in the Northern District of New York, plaintiffs retained counsel from Manhattan. The trial court held that, absent extraordinary circumstances, for lodestar purposes the hourly rate is that charged by attorneys in the district where the court sits. The Second Circuit affirmed on the facts of the case, but clarified that the district court “may have applied the forum rule in too unyielding a fashion.” The court of appeals stated that a trial court “may use an out-of-district hourly rate – or some rate in between the out-of-district rate and the rates charged by local attorneys – in calculating the presumptively reasonable fee if it is clear that a reasonable, paying client would have paid those higher rates.”
Durkee v. Livonia Central School District, 2007 U.S. Dist. LEXIS 29799 (Apr. 23)
Plaintiffs obtained a declaratory judgment against a school district, pursuant to the Individuals with Disabilities Education Act (“IDEA”), that their home-schooled child need not submit to a state evaluation to determine the child’s eligibility for special education services. Plaintiffs then sought attorneys’ fees, but the Western District of New York rejected their application. Under IDEA, awards are limited to “the parent of a child with a disability.” 20 U.S.C. 1415. Here, there was no finding that the child has a disability, and “the very purpose of the action brought by the plaintiffs was to prevent such a finding from being made.”
King v. Turner, 2007 U.S. Dist. LEXIS 30214 (Apr. 24)
After prevailing in this police misconduct case pursuant to 42 U.S.C. 1988, plaintiff sought attorney’s fees exceeding $300,000, which reflected an hourly rate of $500. Defendant argued that the case was relatively routine and thus did not justify the high rate. However, Minnesota’s District Court disagreed, remarking that “the Court has observed that police misconduct cases are very difficult for plaintiffs to win and require significant trial skill and expertise of lawyers.” The Court also rejected defendant’s argument that the fee petition’s block-billing required a reduction. The Court noted that “while other circuits have warned attorneys against the use of block billing,” and it should be avoided if possible, “the Eighth Circuit has no requirement against the use of block billing.” In addition, the Court rejected defendant’s contention that plaintiff’s attorneys spent excessive time on medical research. Extensive medical knowledge was needed for effective examination and cross examination of the medical experts.
Synthon v. Pfizer, 2007 U.S. Dist. LEXIS 28317 (Apr. 16)
After finding exceptional circumstances justifying an attorneys’ fees award pursuant to 35 U.S.C. 285, the Eastern District of Virginia reduced the requested award by 20%. The reduction stemmed from the fee petition “lumping multiple tasks together under the same entry,” as well as instances of “excessive, duplicative, nondescript, unnecessary and/or inefficient work.” For example, the petition included more than 50 entries, totaling 200 hours, identified only as “legal research.”
Summum v. Duchesne City, 2007 U.S. App. LEXIS 8713 (Apr. 17)
After plaintiff received declaratory relief and nominal damages in its Section 1983 claim, but failed in its efforts to obtain injunctive relief, the trial court awarded roughly $700 in attorneys’ fees – one percent the amount requested. Both sides appealed the underlying decision and the fees award. Because the Tenth Circuit reversed aspects of the underlying decision, it called for the trial court to recalculate the fees award. In the process, it offered important guidance, cautioning against awarding little or no fees because “a plaintiff’s victory is merely technical or de minimus.” Such a finding is appropriate only after the court weighs three factors: the difference between the amount recovered and the damages sought; the significance of the legal issue on which plaintiff allegedly prevailed; and the accomplishment of some public goal.
P.N. v. Clementon Board of Education, 2007 U.S. Dist. LEXIS 29289 (Apr. 20)
Plaintiff sought attorney’s fees pursuant to the Individuals with Disabilities Education Act (“IDEA”), and defendant’s response called for a “straight percentage reduction in fees based upon limited examples of excessive billing.” New Jersey District Court noted that while “it would have been preferable for the Board to have provided its specific objections to the fees sought during each phase of this litigation,” it suffices for the party opposing fees to “specify with particularity the reason for its challenge and the category (or categories) of work being challenged; it need not point to each individual excessive entry.”
Lipman v. Chicago, 2007 U.S. Dist. LEXIS 28881 (Apr. 18)
After several female police officers prevailed in this civil rights action, and sought attorney’s fees, the city argued for a downward adjustment to the lodestar based on incomplete success. In rejecting that argument, the Northern District of Illinois observed that lodestar adjustments based on results obtained are limited to “rare and exceptional cases.” Here, plaintiffs received compensatory damages of $325,000 and an injunction against retaliatory disciplinary action. The fact that plaintiffs did not receive punitive damages and other requested remedies was not a basis to reduce the fee award.
The Federal Judicial Center's Attorney's Fees Monograph, coauthored by Professor Hirsch.
