Martinez v. Maroni, 2007 U.S. Dist. LEXIS 32366 (May 2)
While attorney’s fees awards often include compensation for work by paralegals (at paralegal rates), courts may exclude such fees if the work could have been done by someone other than a paralegal. Here, the eastern District of California excluded several hours for “tasks more appropriately handled by a secretary than a paralegal.”
Fair Housing Council v. Davis, 2007 U.S. Dist. LEXIS 31476 (Apr.30)
In this Southern District of Georgia case, plaintiff sought attorney’s fees pursuant to 42 U.S.C. 3613 (c)(2) after prevailing on Fair Housing Act claims. Plaintiff had employed California counsel, and sought fees at California rates. The court rejected the application of out-of-market rates, because plaintiff failed to show that the case could not have been handled by local counsel.
Kashin v. Kent, 2007 U.S. Dist. LEXIS 30800 (Apr. 26)
Defendant successfully defended against this tort claim when the Ninth Circuit ruled that he was acting within the scope of his employment and thus entitled to immunity. Defendant then sought attorneys’ fees pursuant to the Equal Access to Justice Act (EAJA). The Southern District of California rejected the request, because the EAJA authorizes attorneys’ fees in civil actions “other than cases sounding in tort.” Defendant advanced various reasons why the tort exception should not be applied in this case, but the court held that the “plain language” of the statute dictated rejection of these arguments.
Hernandez-Garcia v. Nicholson, 2007 U.S. App. LEXIS 10117 (May 2)
Under the Equal Access to Justice Act, an attorney’s fees application must be filed within thirty days of final judgment. 28 U.S.C. 2412(d)(1)(B). Here, the Federal Circuit affirmed the dismissal of a claim filed thirty-one days after decision by the Veterans Court. The court of appeals rejected the argument that the thirty day period begins on the day the judgment is no longer appealable rather than the day (which is the previous day) the period of appeals expires.
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.
The Federal Judicial Center's Attorney's Fees Monograph, coauthored by Professor Hirsch.
